How much of a difference will it make to the Supreme Court whether Barack Obama or Mitt Romney wins the 2012 presidential election? This will depend, of course, on which, if any, of the current Justices step down in the next four years and on whether the president elected in 2012 is successful in filling those vacancies with the kind of nominee(s) he wants.
At the outset, I want to put aside four possible scenarios: (1) Romney is elected and gets no nominations; (2) Obama is re-elected and gets no nominations; (3) Romney is elected and gets to replace Scalia, Kennedy, Thomas, Roberts, and/or Alito; (4) Obama is re-elected and gets to replace Ginsburg, Breyer, Sotomayor, and/or Kagan. These scenarios are uninteresting, because they will not bring about any significant change in the ideological makeup of the Court.
The more interesting question is what happens if Romney is elected and gets to replace, say, the oldest “liberal” Justice (Ginsburg) or if Obama is elected and gets to replace the oldest “conservative” Justice (Scalia). In such circumstances, Romney would presumably nominate someone similar to the most recent Republican appointee (Alito), and Obama would likely nominate someone similar to the most recent Democratic nominee (Kagan).
We therefore have two scenarios: if Obama is elected Kagan2 replaces Scalia, and if Romney is elected Alito2 replaces Ginsburg. How would these changes affect the future of constitutional law?
Before going any further, I should note that I am using the terms “conservative” and “liberal” rather loosely. In fact, as Richard Posner, Lee Epstein, and William Landes have demonstrated, relative to all Justices who have served in the past seventy-five years, the recent “conservative” Justices (especially Rehnquist, Scalia, Thomas, Roberts, and Alito) have been very conservative. Indeed, they are the five most conservative Justices to serve on the Supreme Court in three-quarters of a century.
By contrast, the “liberal” Justices in recent years (Stevens, Souter, Ginsburg, Breyer, Sotomayor, and Kagan) have been only moderately liberal. They are nowhere near as liberal as Justices like Brennan, Warren, Marshall, and Douglas. They have not been nearly as extreme in their liberalism as recent conservative Justices have been extreme in their conservatism.
Moreover, the two so-called “swing Justices” in recent years (O’Connor and Kennedy) have in fact been quite conservative, though not as extreme in their conservativism as Rehnquist, Scalia, Thomas, Roberts, and Alito.
In the rest of this essay I will therefore refer to the “very conservative” Justices (Rehnquist, Scalia, Thomas, Roberts, and Alito), the “moderately conservative” swing Justices (O’Connor and Kennedy), and the “moderately liberal” Justices (Stevens, Souter, Ginsburg, Breyer, Sotomayor, and Kagan).
Returning now to the possible impact of the 2012 election on the Supreme Court, perhaps the best way to address that question is to look back over the Court’s performance since 2000 to see whether any important cases would have been decided differently if Kagan2 had been on the Court instead of Scalia or Alito2 had been on the Court instead of Ginsburg.
To get a handle on this question, I asked several colleagues (without telling them why I was asking) to identify for me the most important constitutional decisions since 2000. They came up with a list of eighteen cases, ranging across the a broad spectrum of issues involving, for example, the 2000 presidential election, gun control, voter disenfranchisement, affirmative action, abortion, habeas corpus, due process for terrorist suspects, takings of private property, the death penalty, campaign finance reform, the freedom of religion, the rights of gays and lesbians, and the Commerce Clause.
The eighteen cases are, in chronological order, United States v. Morrison (2000) Bush v. Gore (2000), Zelman v. Simmons-Harris (2002), Lockyer v. Andrade (2003), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), Hamdi v. Rumsfeld (2004), Roper v. Simmons (2005), McCreary County v. American Civil Liberties Union (2005), Kelo v. City of New London (2005), Hamdan v. Rumsfeld (2006), Gonzales v. Carhart (2007), Parents Involved in Community Schools v. Seattle School District No.1 (2007), Crawford v. Marion County Election Board (2008), Boumediene v. Bush, (2008), District of Columbia v. Heller (2008), Citizens United v. Federal Election Commission (2009), and National Federation of Independent Business v. Sebelius (2012).
From 2000 to 2012, both the very conservative Justices and the moderate liberal Justices were in the majority in nine of these eighteen cases. Because the two swing Justices were relatively conservative, however, the nine liberal victories tended to be narrowly crafted decisions that were more important for their rejection of the extreme positions put forth by the very conservative Justices than for their embrace of a truly liberal conception of the law.
How did the thirteen Justices who participated in these eighteen decisions vote? The moderate liberal Justices voted for the more liberal position ninety-seven percent of the time (seventy of seventy-two votes — Justice Stevens joined the conservative Justices in Hamdi and Crawford). The very conservative justices voted for the conservative position ninety-eight percent of the times (fifty-nine of sixty votes — Chief Justice Roberts broke ranks in Sebelius). This shows just how polarized the Justices are.
The all-important swing Justices cast nineteen of their twenty-nine votes in line with the very conservative Justices. That is, they joined the very conservative Justices two-thirds of the time. (O’Connor voted with the moderate liberals in Grutter, Lawrence, Hamdi, and McCreary; Kennedy voted with the moderate liberals in Lawrence, Kelo, Hamdan, Hamdan, Boumediene, and Roper). Kennedy voted with the very conservative Justices in twelve of the eighteen cases, or sixty-seven percent of the time; O’Connor voted with the very conservative Justices in seven of eleven cases, or sixty-four percent of the time.
With this information, and re-counting votes, we can reasonably infer that if Kagan2 had been on the Court since 2000 instead of Scalia, the moderate liberals would have won eight of the nine important constitutional cases they lost between 2000 and 2012, and therefore would have won seventeen of the eighteen cases (all but Crawford).
On the other hand, if Alito2 had been on the Court instead of Ginsburg, the very conservative justices would have won seven of the nine cases they lost and sixteen of the eighteen cases overall (all but Lawrence and Hamdi).
In sum, then, we can reasonably conclude that given the current makeup of the Supreme Court a change in the ideology of only one Justice could have had a profound impact on the course of constitutional law. Let me say it again for emphasis: Had Kagan2 been on the Court in these years instead of Scalia, the moderate liberals would have won seventeen of the eighteen cases, and if Alito2 had been on the Court instead of Ginsburg, the conservatives would have won sixteen of the eighteen cases.
There is no reason to think that the Court’s decisions in the future will not be similarly determined by the replacement of a moderately liberal Justice with a very conservative one or by the replacement of a very conservative Justice with a moderately liberal one. The stakes, in other words, are incredibly high.
The final question, then, is whether this scenario is even possible. In the past, the Senate has readily confirmed nominees to succeed Justices whose judicial philosophy was similar to their own. This was true, for example, when Roberts replaced Rehnquist, Alito replaced O’Connor, Sotomayor replaced Souter, and Kagan replaced Stevens. And that will likely continue in the future.
But suppose that President Romney nominates Alito2 to replace one of the moderate liberal Justices or that President Obama nominates Kagan2 to replace one of the very conservative Justices. Because such a change in the makeup of the Court would have dramatic consequences, any such nomination will surely trigger intense opposition – even though that same nominee would easily win confirmation if she were nominated to replace a Justice with the same judicial philosopy. But faced with a nomination promising a radical shift in the ideological “balance” on the Court, both parties, I predict, would vigorously filibuster in order to block confirmation.
What, then, will happen if President Romney has the opportunity to replace one of the moderate liberals or President Obama has the opportunity to replace one of the conservatives? My guess is that for such a nominee to win confirmation, she will have to be someone whose judicial philosophy is a complete mystery. She will have to be someone of (hopefully) impeccable credentials who has never said, written or even dreamed anything about constitutional law. Where we will find such a nominee is an interesting question, but anyone else would be doomed. And then we will see what happens next.