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Analysis: The Court and the 2008 Election

As the presidential campaign season gets an unprecedented early start, it is not too early to start the hyperbole on the importance of the election for the future of the Court and, as a consequence, the future of American law.

The most important caveat to predictions like these is that no one actually knows; this is speculation. The Justices don’t disclose their retirement plans, and those plans they do have are subject to change. What I say below is simply my sense personally, informed by a number of conversations that I think are reliable.

The last four Presidents have filled seats at the Court essentially in pairs: Reagan second term (Scalia 1986; Kennedy 1988); George H. Bush (Souter 1990; Thomas 1991); Clinton first term (Ginsburg 1993; Breyer 1994); and George W. Bush (Roberts 2006; Alito 2007). (Reagan of course also elevated Rehnquist in his second term and nominated O’Connor in his first.)

But those nominees generally have not differed dramatically in their views from the Justice they replaced. Appointments have moved the Court some to the right (Alito for O’Connor; Breyer for Blackmun; Souter for Brennan; Kennedy for Powell; Scalia for Burger); some to the left (Ginsburg for White); or not much at all (Roberts for Rehnquist (chief)). (Note that of course the Breyer and Souter appointments weren’t “conservative”; my point is just the relative direction of the Court.) The only truly dramatic change was Justice Thomas, who replaced Justice Marshall.

The next President similarly will have two appointments immediately (replacing Stevens and Souter), and there also is a very substantial prospect that a Democrat would quickly be in a position to appoint a third (replacing Ginsburg). In fact, if a Democrat wins, there will be something of a race for the exits.


Justice Stevens is 87. He seems in great health, but it is not reasonable to expect him to extend his tenure to age 93 (i.e., past the 2012 elections). Justice Souter is only 67. But he seems the most enthusiastic about leaving; he never embraced the job (or Washington, DC) as a lifetime commitment. Justice Ginsburg is 74. Many people say that she is in poor health, but I just don’t see that; it is easy to mistake her somewhat timid physical demeanor for broader health problems and she is certainly intellectually in top form. Nonetheless, one does get the strong sense that, having served 16 years by the time the next President takes office and facing the prospect of serving in the current environment until she reaches 80, Justice Ginsburg would very seriously consider allowing a Democratic President to nominate a replacement to be confirmed by a Democratic Senate.

Even a Justice on the left who is planning on leaving and would prefer to have his or her successor appointed by a Democrat will likely retire relatively early in a Republican presidency. The Senate will probably remain in Democratic hands in 2009, limiting the prospect of a very conservative replacement. So, I would be very surprised if Justices Stevens or Souter would stay. But the dilemma of leaving under a Republican President would be substantial for Justice Ginsburg, and I expect she would stay so long as her health permitted.

By contrast, I don’t see any prospect of any conservative Justice retiring under a Democratic president. The Chief Justice and Justice Alito are of course new to the job and young. Justice Kennedy (at 70) is thriving. Rumors abound about Justice Scalia retiring – most often, it is said, for money – all of which are absurd so far as I can tell; he is at the top of his game at age 71.

The consequences of two or three moderate-to-liberal seats turning over will be either minor (under a Democrat) or potentially massive (under a Republican). As Marty detailed in this earlier post, many areas of the Court’s jurisprudence could be pushed in a substantially more conservative direction by a single vote. Marty’s point was to identify the principal doctrines and decisions that are amenable (or vulnerable, depending on your perspective) to overruling or to other significant shifts as a result of Justice O’Connor being replaced by Justice Alito.

But for those decisions that do retain their vitality after the recent appointments – most likely as a result of the effect of stare decisis, though perhaps because of the vote of Justice Alito – the same prospect for radical change arises from the potential shift of yet another vote or votes to the right. For example, though it appears that Justice Kennedy will read Roe v. Wade narrowly, he is for the time unwilling to overrule it. Justices Scalia and Thomas are clear votes in favor of overruling. The Chief Justice and Justice Alito are defenders of stare decisis, but squarely presented with the question – and unable to reach the result they believe is right by narrowing Roe further – it seems likely that they would vote to overturn it, as it is a decision that (insofar as their pre-judicial statements are instructive) they believe is essentially lawless.

It is also possible to identify other doctrines that could be revisited because they were six-to-three, with Justices O’Connor and Kennedy joining the left. Most interesting is whether there would be an attempt to overturn the principal gay rights ruling, Lawrence v. Texas.

Of course, there are many doctrines in which “conservatives” and “liberals” are not single-minded. The Court’s recent sentencing and confrontation doctrines are examples. Conservative justices who are critical of the substantive due process doctrine could also join Justices Scalia and Thomas in opposing constitutional limits on punitive damage awards. There is also a distinction between federal-power and states-rights conservatives (whereas more liberal Justices tend to favor federal power fairly uniformly), so that particular appointments could revive limits on Congress’s Commerce Clause power.

Notably, the most dramatic shifts in modern American constitutional law occurred when the Court had a firm ideological majority in the 1960s and 1970s. Take a look at this hit parade from the 1960s through the mid-1970s: Mapp v. Ohio (1961); Baker v. Carr (1962); Gideon v. Wainwright (1963); NYT v. Sullivan (1964); Katzenbach v. McClung (1964); Reynolds v. Sims (1964); Griswold v. Connecticut (1965); South Carolina v. Katzenbach (1966); Miranda v. Arizona (1966); Katz v. United States (1967); Flast v. Cohen (1968); NYT v. US (1971); Reed v. Reed (1971); Furman v. Georgia (1972), but see Gregg v. Georgia (1976); Frontiero v. Richardson (1973); Roe v. Wade (1973); and Buckley v. Valeo (1976).

The majorities in those seminal cases were sometimes broad (for example, Gideon and Frontiero) but in others were quite slim (for example, Mapp and Miranda were both 5-4). But there was nonetheless a majority, which was guided by an ideological core that (to borrow a phrase from Cass Sunstein’s recent essay) had a vision – Brennan and Douglas (throughout); Clark (through 1967); Marshall (replacing Clark); Warren (through 1969); Fortas (1965-69); and Black (through 1971).

More recently, very significant doctrinal changes have been constrained by the absence of a consistent, workable, aligned, and committed conservative majority. Justice O’Connor was not going to permit the Court to shift dramatically to the right. She agreed with limiting Warren-Court precedents on nearly all social issues – including abortion, race, religion, and the death penalty. But she refused to endorse a wholesale revisiting of them.

Justice Kennedy is unlikely to take a fundamentally different approach, even if the Chief Justice and Justice Alito would. An example is Hudson v. Michigan, in which Justice Kennedy provided a fifth vote for Justice Scalia’s majority opinion criticizing the exclusionary rule, but also concurred separately to say that he would not overrule it. The Court there moved to the right – it appears that Justice O’Connor voted with the defendant in the case, but the opinion could not be released before her departure and Justice Alito went the other way – but not nearly as far as it might have. The recent partial-birth abortion decision similarly indicates that Justice Kennedy is willing to move the Court in a more conservative direction on a variety of issues (presumably, race and religion are other examples). But he seems unlikely to overrule prior precedents openly. On other questions – such as the Takings and Commerce powers – he does not seem inclined to major doctrinal change at all. And on still others – such as the death penalty – he adopts a case-by-case approach.

As a consequence, whether the Court moves more fundamentally to the right, so that it could genuinely undo the jurisprudence of the Warren Court, depends on the next President. If two or three of the moderate-to-liberal votes were replaced with genuine conservatives, the existing constraints on more radical doctrinal shifts created by swing votes like Kennedy or O’Connor would be lifted.

Those sorts of dramatic changes are not at all implausible. Current law students tend to view Warren Court-era decisions as if they were written into the text of the Constitution itself. But as noted, Roe v. Wade and the exclusionary rule have been the subject of recent opinions urging their overruling. Miranda was recently challenged. A number of cases challenging existing doctrine on the separation of church and state are likely to reach the Court in the coming years.

By contrast, if a Democratic President wins in 2008, the current conservative-leaning détente on the Court is likely to be enshrined for the indefinite future. Imagine if in 2009 Justices Stevens, Souter, and Ginsburg were replaced by Judge Garland (then age 57), former Solicitor General Seth Waxman (58), and Dean Elena Kagan (49); they would join Justice Breyer (71). On the right, you would have Scalia (73); Thomas (60); Alito (59); Roberts (54). And Kennedy in the center (for this Court) would be 73.

In that scenario, the potential range of movement in the Court’s jurisprudence would narrow dramatically. Only three Justices – one from the left, one from the right, and one in the center – would be at an age at which they would even be thinking of retiring. The other six Justices would be expected to serve at least 10 (and more likely 15 or 20) years.

In sum, the 2008 election window presents the most significant opportunity to shape the direction of the Supreme Court that can be anticipated for roughly the next two decades – i.e., as far into the future as anyone can reasonably hope to look. For the left and the right, the stakes are genuinely high.