Little attention has been given this presidential election to the Supreme Court. Yet, for decades, the Court has operated with an ideological divide that results in numerous 5-4 decisions, most recently with Justice Kennedy typically determining whether the conservatives or the liberals will prevail. During the 2011 term, for example, 14 of the Court’s 42 nonunanimous cases were of this type—7 in which the conservative bloc prevailed and 7 the liberal bloc. Kennedy was on the winning side in 13 of those 14 cases.
Republican presidents since Nixon have made clear that creating a conservative Court in their own ideological image is a high priority, but in making 13 of the 17 appointments available during that time, they have continually remained one justice away from securing that goal. It has remained elusive, not only because Republican presidents have not always chosen justices who share their conservative values, despite their efforts to do so, but because the president must be abetted in this effort by a like-minded Senate. The switch-hitting Kennedy joined the Court roster only because a Democratic Senate thwarted the nomination of President Reagan’s first choice, Robert Bork.
The 2012 election has been characterized as one in which the choice has never been clearer between two different perspectives of the role of government and the nature of our polity. That the Court is a single justice away from being more consistently conservative or liberal when such issues come into play contributes to the significance of this election. The appointment power will rest with either Obama or Romney, but the critical confirmation authority remains with the Senate and control of the Senate is distinctly up for grabs. The pressure is on the Democrats. While they now control the Senate, 23 of the 33 seats being contested have been controlled by the Democrats, including two Independents who have caucused with them, the Republicans risking only 10 of their incumbent positions.
Of course, it takes a vacancy to make an appointment, and none of these justices seem intent on creating one. The median age of the last nine departing justices has been 79. Ruth Ginsburg is there already, while Antonin Scalia and Anthony Kennedy will be there in three years. And while there is nothing magical about reaching the median departure age (Stevens was 90 before his retirement), only one justice in the past 50 years has died while serving on the Court (Chief Justice Rehnquist). So, it is a reasonable expectation that these justices will prefer to retire (they can do so at full pay) at some point in their illustrious careers.
Regardless of the electoral outcome, any appointment that promises to solidify one bloc of justices over the other will be met with considerable opposition in the Senate. Neither party is in position to carry a sufficient number of seats to override a filibuster by the minority. It will get ugly because the stakes are so high. After all, it was one of those 5-4 decisions that gave us President Bush rather than President Gore.
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