“That’s how close Roe v. Wade is,” declared Vice President Joe Biden during his October 11th debate with Congressman Paul Ryan. He preceded that warning with the prediction that “the next president will get one or two Supreme Court nominees.”
For many months, we Americans have been focused on, or overwhelmed and at times disgusted by, the race for the U.S. Presidency and various seats in the U.S. Congress. Yet, Biden’s brief debate admonition was a rare reminder about the election’s implications for the third branch of the federal government.
On November 6th, there were no election ballots with a box for “U.S. Supreme Court Justice.” Yet, the American vote on that day may have great implications on the list of justices of the Supreme Court, and the law it will shape, for many years to come. But then, in contrast to the certainty expressed in Biden’s debate prediction, it is also possible that the election will have no implication on the court at all.
Of the nine current Supreme Court Justices, four are now over the age of seventy. The oldest, who will soon be eighty, is Ruth Bader Ginsburg. Appointed by President Bill Clinton is 1993, Justice Ginsburg is a former general counsel for the ACLU and an outspoken champion for women’s rights. She has spent her years on the court with a prominent and respected voice in its more progressive wing.
Justice Ginsburg, age 79, is also a survivor of colorectal and pancreatic cancers, but she has recently insisted that her health is good. Still, given her age, health history and progressive lean, there is obvious logic to the speculation that she might choose to have her replacement appointed by President Barack Obama rather than take the chance that a Republican might succeed him in 2016.
When asked about her plans, the oldest justice has said, “You have to take it year by year.” But, the clearest indication about her plans may have come from some of her other words. She has expressed a great admiration for the legendary former Supreme Court Justice Louis Brandeis who retired at age 82 in 1939. The admiration includes a stated desire to match his tenure, which she will accomplish if she remains on the Court for three more years. That landmark would occur in March 2015 when Ginsburg turns 82 and Obama still has nearly two years remaining is his second term.
If President Obama does have the opportunity to replace Justice Ginsburg, his appointment will do little to change to the ideological make-up of the court or its jurisprudence. Yet, its importance is still great because of what it makes less likely. A replacement of the senior progressive justice with a more junior like-minded justice will prevent a replacement with a conservative appointee that might move the court further to the right.
Like Ginsburg, Justice Stephen Breyer, age 74, was an appointee of President Clinton. There is less speculation that Justice Breyer might leave the court in the near future. He has been generally healthy and appears to enjoy his place on the court.
A more momentous change will occur upon a departure of one of the court’s conservative stalwarts. Antonin Scalia and Anthony Kennedy are both age 76.
Justice Scalia, who was appointed by President Reagan in 1986, has long been the intellectual heft of the conservative wing of the court. In a July interview with CNN’s Piers Morgan, Scalia said “of course I’ll retire … certainly I’ll retire when I — when I think I’m — I’m not doing as good a job as I used to. That — that will make me feel very bad.”
It would be a great surprise if Scalia voluntarily left a vacancy on the court for an Obama nomination. Yet, similar surprises have occurred before. There was the resignation in 1991 of Justice Thurgood Marshall, the first African-American Supreme Court justice and a legendary figure as an attorney during the civil rights movement. His retirement during the first President Bush’s only term, gave the Republican a chance to appoint the most conservative justice on the current court, Clarence Thomas.
However, at the time of Marshall’s retirement, he was 83 years old and he had grown very weary of his effort to hold on in office until the election of a Democratic president. In fact, Justice Marshall lived little more than a year after his retirement when he passed away on January 24, 1993, four days after the inauguration of Democratic President Bill Clinton.
Other than the possible replacement of Justice Ginsburg, the most likely nomination opportunity for President Obama might occur upon a retirement of Justice Kennedy. Like Scalia, he is 76 years old, has had few health concerns and has not appeared to be preparing to turn in his robe. However, a 2010 article in the New York Daily News did announce that Kennedy “has told relatives and friends he plans to stay on the high court for at least three more years - through the end of Obama’s first term.” In President Obama’s upcoming second term, Kennedy’s plans remain unknown.
Since the retirement of Justice Sandra Day O’Connor in 2005, Kennedy has generally been the most likely swing voter on the court. While generally a conservative justice, he has on ever more rare occasions joined the opinions of the court’s more liberal wing. The theory that Kennedy might retire during a Democratic presidency involves the assumption that he might not be insurmountably resistant to the idea of his replacement by another member of that liberal wing. The President’s public criticism of his majority opinion in the 2010 Citizens United decision is unlikely to increase those chances. Obama called the ruling “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power ... in Washington to drown out the voices of everyday Americans.”
Of course, as with all of us humans, life can carry surprises that change firmly desired plans. The 80 year old conservative Chief Justice William Rehnquist died while still a member of the court in 2005. In that same year, the moderate conservative O’Connor retired earlier than expected to care for her husband who had been diagnosed with Alzheimer’s disease.
In addition to Scalia, Thomas, and Kennedy, the other conservative Republican appointees are Chief Justice John Roberts, age 57, and Justice Samuel Alito, age 62, both appointed by the junior President Bush. Other than Ginsburg and Breyer, the remaining progressive justices are the first term Obama appointees, Justice Sonia Sotomayor, age 58, and Justice Elena Kagan, age 52.
Given all of the nomination speculation, you might not be surprised that it has extended to the mention of possible future Obama nominees. The most well-known rumored choice is probably Janet Napolitano. She is the current U.S. Secretary of the Department of Homeland Security. At age 54, she is also the former governor of Arizona and its attorney general before that. While her experience in the Obama cabinet may open her up to greater questioning and criticism than other possible candidates, her experience as a governor will likely be appealing to President Obama who has expressed an interest in adding a justice with time spent in elected office.
Also mentioned as a potential choice is Judge Diane Wood, age 62, who currently serves on the Seventh Circuit Court of Appeals and who was considered by President Obama for his two first term appointments. She was appointed to her court by Bill Clinton in 1995. Prior to that, she was a senior lecturer at the University of Chicago, which is notably also where Obama taught constitutional law. She previously served as a clerk for former Supreme Court Justice Harry Blackmun and she currently serves as a liberal counter-balance to the conservative members of her court.
Another possibility mentioned often is the current California Attorney General Kamala Harris. She is 48 years old and was born to immigrant parents from India and Jamaica. A possible deterrent to Supreme Court aspirations is her rumored interest in running for the California governorship.
After his first term appointments of Sotomayor and Kagan, what is the likelihood that President Obama will appoint three straight justices that are women? If the replacement is for the seat of a departing Justice Ginsburg, a female nominee might be more likely than not. Given that there are currently twice as many men as women on the court (six to three), he may be reluctant to increase the imbalance.
If Obama changes it up and picks a man next, one option might be Judge Merrick Garland, of the D.C. Court of Appeals. He has also been considered for past vacancies. At age 59, he has served on his court since his 1997 appointment by President Clinton.
Judge Garland graduated magna cum laude from Harvard Law and he was a clerk for former Supreme Court Justice William Brennan. He worked in the Justice Department in the 1990s and oversaw the Oklahoma City bombing and Unabomber prosecutions.
As a moderate and consensus-builder type candidate, Garland might be a logical choice if a Republican appointee leaves the bench. The nomination of a very liberal choice to replace a departing conservative might create a fierce confirmation battle in the Senate. Without a filibuster-proof majority of 60 or greater Senate Democrats, any Obama appointee will need to receive at least a few affirmative votes from Republican Senators. Given his desire to pursue the “grand bargain” deficit deal, immigration reform and other second term initiatives, President Obama might not want to pick that fight. He might reserve any more liberal appointment for a replacement of Justice Ginsburg or another Democratic-appointed justice.
Another judge on the U.S. Court of Appeals that has been considered for vacancies during Obama’s first term and might be a future appointee is Sidney Thomas, age 59. He joined the Ninth Circuit Court of Appeal when he was appointed by Clinton in 1996. Other possible male appointees include Judge Paul Watford, of the Ninth Circuit Court of Appeals, and Sri Srinivasan, who has been nominated, but not yet confirmed, to the D.C. Court of Appeals.
Judge Watford is African-American, a young judge in only his mid-40s and a former clerk for Justice Ginsburg. Judge Srinivasan, who is also in his mid-40s, was born in India and is the current U.S. Principal Deputy Solicitor General.
Of course, a change in the composition of the court would have little importance without it hearing new cases of importance. The next several years are likely to have more than a few of them.
Roughly a month ago, on October 10th, the Supreme Court heard arguments in Fisher v. University of Texas at Austin. The case revisits the constitutionality of affirmative action in higher education.
In 2003, the court upheld the affirmative action admissions policy at my old law school, the University of Michigan. In that case, the moderate Justice O’Connor joined the progressive members of the court to provide a 5 to 4 decision that upheld the limited consideration of race in admissions decisions. With the 2006 replacement of O’Connor with the extreme conservative Justice Alito, most court followers speculate that the practice of affirmative action in college admissions will be ended with this decision. The expected decision may also have future implications on affirmative action programs in police force hiring, teacher recruitment, and a variety of other areas.
In October, the court also heard cases that involve the constitutionality of the death penalty for the mentally ill convicted of capital crimes, the use of a narcotics sniffing dog without a warrant, and U.S. wiretaps on Americans while abroad.
On the heels of several election day victories for same-sex marriage equality, the highest court may be poised to accept one or more cases that challenge the constitutionality of the 1996 Defense of Marriage Act. The court may also hear the appeal of the California court decision to strike down Proposition 8, the 2008 voter initiative that banned same-sex marriage within the state.
The Voting Rights Act of 1965 may also be under attack. The passage of strict voter ID laws in various states rightfully received a fair bit of attention during the recent election season. The motivation of many of their Republication proponents was exposed by the pre-election prediction by the Pennsylvania House majority leader that their new voter ID law “is gonna allow Governor Romney to win the [presidency].” The voter suppression law was subsequently blocked by a court prior to the election.
Similar laws in Florida, Texas and South Carolina were struck down by the U.S. Department of Justice which reviews the voting laws of many ex-Confederate states under to the Voting Rights Act. One or more legal challenges to the Act may soon make their way to the highest court.
And then, of course, there is the 2010 decision in Citizens United v. Federal Election Commission. It is probably a safe assumption that the effects of money, and super PACs, during the 2012 campaign did little to weaken the decision’s dissent of the four members of the court’s progressive wing. If an Obama nominee were to replace one of the 5 conservative justices, the court might elect to hear a new case that would present the question whether to preserve the decision in Citizens United.
During the court’s last term, Justices Ginsburg and Breyer urged their colleagues to accept the appeal of American Tradition Partnership, Inc. v. Bullock, a campaign finance case from Montana in which that state’s supreme court rejected the Citizens United’s decision. Ginsburg announced that “Montana’s experience, and experience elsewhere since this court’s decision in [Citizens United] make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” quoting a criteria included in the Montana court’s majority opinion. She continued, “a petition for certiorari will give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
Despite the efforts of Ginsburg and Breyer, a majority of the court voted to reverse the ruling in the Montana case and to again permit the unlimited spending of corporate money in political campaigns in Montana. The question remains whether a future Supreme Court, with its future members, will make the same decision. That’s how close Citizens United is …