There will be no shortage of consequential issues at stake during the 2016 presidential election. But one issue could loom larger than all of them.
“You cannot overstate the importance of the Supreme Court in the next election,” said Carrie Severino, policy director of the Judicial Crisis Network and a former clerk for Justice Clarence Thomas.
Whether on healthcare, labor unions, presidential power, national security, campaign finance, gun rights, marriage, abortion, or a host of other issues, the Supreme Court’s decisions have major ramifications for Americans.
Though judicial nominations are always important in any presidential race, the 2016 election might be unique. In recent history, vacancies have tended to come up in a way that didn’t immediately or substantially change the balance of the court. For instance, President Obama appointed liberal Justices Elena Kagan and Sonia Sotomayor to replace liberals David Souter and John Paul Stevens. That made the liberal bloc of the court younger but didn’t represent a major ideological shift.
By the middle of the next president’s term, however, there will be four justices in their 80s. Swapping out several of them could lead to a dramatic shift in the court that could reverberate for decades.
Ruth Bader Ginsburg, who is 81, has indicated in recent interviews that she has no plans to retire despite some liberal calls for her to do so while Obama is in a position to name her replacement. By the end of the next president’s first term, she will be nearing 88.
Justices Antonin Scalia and Anthony Kennedy will both turn 80 during the 2016 presidential election year, and Stephen Breyer will turn 80 in 2018.
Depending on which spaces become vacant under which president, there could be a dramatic change on the court.
As an example, let’s say Hillary Clinton is elected president in 2016. If she were able to replace Ginsburg and Breyer, and either Kennedy or Scalia, she would potentially lock in a very young liberal majority in which none of the liberal justices was born before 1954. They could be around to make rulings for decades — overturning gun rights, cementing Roe v. Wade, and granting vast new regulatory powers to the federal government.
On the flip side, if a conservative were elected president and is able to replace Ginsburg, Kennedy and Scalia, it could potentially create a relatively young 6-3 conservative majority that places stricter limits on the federal government and preserves more power for the states.
“Justice Kennedy, I think, is really the key to a lot of this, because whoever replaces him is going to almost certainly dramatically change the direction of the court’s jurisprudence,” Severino said. “He is a deciding vote on so many issues and so if you replace him with a liberal, you’re going to shift the court well to the left. If you replace him with a conservative, you’re going to shift the court to the right. Kennedy’s successor’s nomination is really going to be World War III.”
Given that the 2016 Democratic presidential nomination battle is expected to be less competitive than the Republican one, and given that Democratic presidents have a better record of appointing reliably liberal justices than Republicans have of appointing reliably conservative ones, the issue of judicial appointments is likely to figure more prominently in the GOP primaries. Conservative voters will want to be assured that any Republican nominee would appoint justices who would be guided by the text of the Constitution.
With the general election two years away, it’s difficult to predict what will be on the minds of the broader electorate when Americans choose their next president.
Presidential elections usually are decided by factors other than lifetime appointments to the Supreme Court, yet every year (typically when major decisions are announced in June) the justices remind Americans how much influence they have on the direction of the nation.
The grandiose plans of presidential candidates can often evaporate once they meet legislative reality, but the Supreme Court is one place where presidents can have an enduring impact. Indeed, the composition of the court can weigh on current and future presidential actions. Given the potential for the next president to shape the court for decades, judicial nominations should be of significant importance in 2016.
