Daniel Fisher writes for Forbes:
The decades-long campaign by conservatives to build a lasting majority on the U.S. Supreme Court may come to an end over the next four years, now that President Obama has apparently been reelected to the White House.
While it is possible all five of the conservative-leaning Supreme Court justices will try to hold onto their seats until the end of the Obama presidency, death and the siren call of a well-funded pension plan may pull one or more of them off of the bench. That would give Obama the opportunity to swap in a left-leaning justice who could prevent Chief Justice John Roberts from obtaining a majority in the cases that divide conservatives and liberals — abortion, affirmative action and employee and property rights.
The justice who is most likely to leave the court during the second Obama presidency is Ruth Bader Ginsburg, a liberal who at age 79 is birdlike and frail, but hardly slacking off from her prodigious work habits. More worrisome to conservatives is Justice Antonin Scalia, tied with Justice Clarence Thomas as the most conservative judge on the high court (and a self-described “best buddy” with Ginsburg) who at 76 has discussed retirement recently with various reporters.
“Of course I’ll retire,” he told CNN’s Piers Morgan in July. “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.”
Justice Anthony Kennedy is also 76. The court’s swing vote has infuriated and enthused conservatives in practically equal measure since Ronald Reagan nominated him in 1987 to replace his failed first choice, ultraconservative Robert Bork. Kennedy has sided with the conservatives in many important cases recently, including his surprising (to me, anyway), vote against Obamacare this summer.
If Kennedy retires or dies during the Obama administration, instead of a swing vote, the court will get a justice who more reliably will side with the liberals on questions such as employee rights, the breadth of Congressional power, and hot-button issues with trial lawyers such as whether class actions can be preempted by the Federal Arbitration Act.
“It all depends who gets replaced,” said James Burling of the libertarian Pacific Legal Foundation, which won a groundbreaking case this year involving the rights of landowners to challenge the government’s designation of their property as protected inland wetlands. “If it’s Ginsberg, well, things can’t possibly be much worse.
If youre talking about replacing Kennedy, that’s potentially quite troubling.”
Of course, any of these judges may stick it out until Obama himself has retired. The oldest-sitting Supreme Court justice, Oliver Wendell Holmes, remained on the bench until he was almost 91.
But it is more likely at least one of them will leave the bench during the final Obama years, either through retirement or death. According to this paper by Ross M. Stolzenberg of the University of Illinois and James Lindgren of Nortwestern University Law School, the odds of a justice dying in office is slightly more than 5% per year, increasing steadily as justice age past 70. About 45% of all Supreme Court justices have died in office, while 47% retired.
Another finding by Stolzenberg and Lindgren should give hope to conservatives. The researchers studied when justices tend to retire and found there is a 2.6 times chance they will step down voluntarily if the president is from the same party as the one who nominated them. Put another way, there is a significantly higher chance they will try to hold on to their seat until a president from their own party is elected, or they die. The odds of a justice retiring are higher in the first two years of a presidential term.
Liberals have a long list of issues they’d like to see decided by a less conservative court. The Center for American Progress listed most of them in a handwringing piece this fall, “An Obama Supreme Court vs. A Romney High Court.” Many seem to follow the concerns of trial lawyers, including:
- Mandatory arbitration for employee lawsuits, which would cut down on lucrative mass wage-and-hour suits.
- Age-discrimination suits, which were limited under a 2008 decision, Gross v. FBL Financial.
- Using federal law to preempt suits in state courts, where juries can be more generous to plaintiffs and judges more difficult toward corporate defendants.
A newly liberalized court might also revisit affirmative action, which the Roberts Court will likely limit further, or declare unconstitutional, in the pending Fisher vs. University of Texas decision. A liberal majority also might look for an opportunity to reverse Citizens United, which itself overturned federal campaign-finance reform law as well as prior Supreme Court precedent limiting corporate and union contributions toward political speech. It also might reverse the Roberts Court’s decisions allowing voter identification laws and severely limiting Congress’ power to compel the states to do its bidding.