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U.S. Supreme Court about to take a sharp turn. But where?

Written By | Jun 20, 2016

WASHINGTON, June 20, 2016 — This year’s election is primed to have a major impact on the lives of U.S. citizens as well as the nation’s future. To say that the ideological balance of the Supreme Court is currently at stake is an understatement; if the next president serves two terms, the court will look nothing like it has in the recent past.

Supreme Court Justices fall into three categories: Liberal, Conservative and Swing.

Liberal justices view the Constitution as a living and ever-changing document. They are comfortable with applying the Constitution in ways that were never intended by the nation’s Founders because they believe that 230 years of history present new situations that the country’s founders could never have imagined.

Conservatives tend to stick with the original text and meaning of the Constitution and not try to read into it things that aren’t there. If the nation wants to change a Constitutional matter, they believe that passing a Constitutional Amendment is the proper way to go about it.

The Constitution grants and restricts government power. Liberal rulings tend to give the government more power; conservative rulings tend to restrict it, reserving power for the people or the states. Justices who are considered to be in a swing role seem less ideological and may vote the liberal side or the conservative side, depending on the issue at hand.

This is how the court stacks up today:

Justice Age Nominated By Began Serving Record
John Roberts 61 George W Bush 2005 Conservative/Swing
Anthony Kennedy 80 Ronald Reagan 1988 Swing
Clarence Thomas 68 George Bush 1991 Conservative
Ruth Bader Ginsburg 83 Bill Clinton 1993 Liberal
Stephen Breyer 78 Bill Clinton 1994 Liberal
Samuel Alito 66 George W Bush 2006 Conservative
Sonya Sotomayor 62 Barak Obama 2009 Liberal
Elena Kagan 56 Barak Obama 2010 Liberal

The currently open position was held until recently by Justice Antonin Scalia, a staunch conservative and a leader in the originalist view of Constitutional interpretation. Due to election year politics, this position likely won’t be filled until a new president is in office next January.

Many justices remain on the court until their death, though in the past ten years three justices have retired from the bench. Sandra Day O’Connor retired at 76 years of age. David Souter retired at 70, and John Paul Stevens retired at 90. Given the age of sitting justices, it would not be surprising to see three of them leave the court in the next eight years: Ginsberg, a liberal; Kennedy, a swing voter; and Breyer, another liberal.  With the formerly conservative seat of Scalia open, that means two currently liberal seats, a conservative seat and a swing seat that sometimes votes conservatively would all be replaced.

Hillary Clinton and Donald Trump, this year’s likely presidential nominees, have said very clearly how they would fill those seats. “[A]sked about President Barack Obama’s nominee to replace pro-life Justice Antonin Scalia, Clinton said she would not second guess Obama’s nomination and added that any nomination she would make if elected would be a hardcore abortion activist who supports Roe v. Wade.”

She has also made it clear that she favors restricting gun rights, and has said that her litmus test for nominees will be whether they favor overturning Citizens United, a 2010 ruling that allowed corporations and unions to spend unlimited sums of money on independent political activity.

The likely GOP nominee, Trump has made public a list of the individuals he would nominate to the Supreme Court. The list has been praised by conservative groups. If one assumes that both are true to their word, Clinton will nominate the most liberal justices and Trump the most conservative.

President Clinton would nominate a liberal justice for Scalia’s open seat, immediately adding the fifth liberal to the court, making the conservatives powerless to do anything except write dissenting opinions. If the next three likely justices left the court on her watch, two liberals would be replaced by liberals and the swing vote would be replaced by a liberal. This would increase the imbalance on the court to 6 liberal votes to 3 conservatives.

The next likely justices to retire in a future president’s term would be the only two staunch conservatives left. A Clinton presidency would tilt the court left for at least 20 – 30 years, during which time government power would likely increase to the point that no return to America as we know it would be possible.

A Trump presidency would result in the Scalia seat remaining conservative and the court remaining relatively balanced with the swing votes of Kennedy and Roberts. If the next three likely retirees left the court, a swing seat and two liberal seats could go conservative. That would result in a court with 5 conservatives and a conservative/swing seat, tilting the court in the conservative direction.

Republican legislators have been less likely to demand a stand from Supreme Court nominees on issues that are important to them. For that reason, they often confirm centrist justices. In the case of Bush 41 nominee Justice Souter, a Republican helped put a liberal on the court.

Supreme Court nominees are typically in their early 50s. For that reason, newly appointed liberal justices and the new justices nominated by the next president will serve for 20-30 years. A great deal can be accomplished by a lopsided court majority in that period of time.

It is unfortunate that an election in which each nominee has the highest negatives of any in recent history is proving so important. Unfortunately, if the past is any indication, we can expect that the voters with the most impact on our nation’s future will be the ones who stay home.

Jack Meyer

Jack Meyer operates small businesses in Arizona and Colorado and is a follower of politics.