Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law, University of Chicago. This article was first published in the Huffington Post.
The Supreme Court plays a central role in the American legal and political system. In recent years, it has decided profoundly important cases involving such issues as campaign finance regulation, the freedom of speech, the freedom of religion, the death penalty, the freedom from unreasonable searches and seizures, voting rights, gun control, abortion, affirmative action, and the rights of gays and lesbians.
On most of these issues, the justices have divided five-to-four, typically with Justices Roberts, Scalia, Thomas, and Alito on one side, Justices Ginsburg, Breyer, Sotomayor, and Kagan on the other side, and Justice Anthony Kennedy serving as the “swing” or deciding justice, usually, though not always, siding with the Roberts “group.”
At present, we have what, measured by historical voting patterns, is a very conservative Supreme Court. This is not surprising, because since the end of the Warren Court Republican presidents have made 12 of the 16 Supreme Court nominations. As a result, the Court has gotten steadily more conservative over time. This is evident in the fact that the “swing” justice has shifted over that time from Justice Lewis Powell to Justice Sandra Day O’Connor to Justice Anthony Kennedy — an unbroken march to the right.
What will the Supreme Court look like a decade from now?
In 10 years, the Court will likely have a significantly different makeup than it does today. Four of the current justices are 76 years-old or older. Justice Breyer is 76, Justice Kennedy is 78, Justice Scalia is 79, and Justice Ginsburg in 82.
In the last half-century, 18 justices have stepped down from the Court. Their average age at retirement was 75. Of those 18 justices, only two were still on the Court at the age of 86 (Stevens and Blackmun). Of the 112 justices who have served on the Supreme Court from its beginning, only four were still on the Court at the age of 86.
It therefore seems likely that we will see a substantial turnover on the Court over the course of the next decade. It will matter a lot who gets to fill those vacancies. This is so not only because presidents want to nominate justices who will reflect their own views of the law, but also because presidents have gotten quite good in recent decades at identifying nominees who will in fact reflect their own views of the law.
Although justices may occasionally surprise and disappoint the presidents who appoint them (Earl Warren surprised Dwight Eisenhower and David Souter surprised George H.W. Bush), such “mistakes” have become increasingly rare as presidents and their staffs have learned how to vet potential nominees with ever greater scrutiny and care.
It will therefore matter a lot who gets to appoint the justices who will succeed those who are now on the Court, but will be gone by 2025. With that in mind, what might happen to the Supreme Court over the course of the next decade?
Let’s assume, though it’s hardly certain, that all four of the justices who are today 76 or older leave the Court by 2025.
Let’s also assume, first, that a Democratic president is elected in 2016 and is re-elected in 2020. If that president gets to appoint the four new justices, and all four are more or less similar in outlook and approach to Justices Sotomayor and Kagan, the two most recent Democratic nominees, then the Supreme Court in 2025 will include six “liberal” justices (Sotomayor, Kagan, plus the four new nominees) and three “conservative” justices (Roberts, Thomas, and Alito). Such a shift would move the Court sharply to the left.
On the other hand, if we assume that a Republican president is elected in 2016 and is re-elected in 2020, things will look quite different. If that president gets to fill the four vacancies, and all four are more or less similar in outlook and approach to Justices Roberts and Alito, the two most recent Republican nominees, then the Court in 2025 will include seven “conservative” justices (Roberts, Thomas, Alito, plus the four new nominees) and only two “liberal justices (Sotomayor and Kagan). Such a shift would move the Court even farther to the right than it is today, because the “swing” justice under this scenario would be someone appreciably to the right of Justice Kennedy.
Across a broad range of fundamental issues, including some we cannot today even predict, these two versions of the Supreme Court would be profoundly different institutions that would reach sharply different conclusions about the meaning of constitutional law. Might Citizens United be overruled? Roe v. Wade? District of Columbia v. Heller? Only time will tell.
Of course, none of this may come to pass. Perhaps none, or only one or two, of the current justices will retire in the next decade. Perhaps the president we elect in 2016 will be replaced by a president of the other party in 2020, and each will get the same number of nominations. Perhaps the Senate will refuse to confirm nominees unless they are more middle-of-the-road than justices Roberts, Alito, Sotomayor, and Kagan. Nothing is certain. It is all up for grabs.
What we do know, though, is that on this question, as on so many others, the individual we elect as president will have the potential to have profoundly important consequences for the Supreme Court and the nation in the decade to come.
This post is part of a series commemorating The Huffington Post’s 10 Year Anniversary through expert opinions looking forward to the next decade in their respective fields.