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Ordering the Court

News & Features | November 27, 2012

Obama may have the opportunity to be the first president since Reagan to appoint three Supreme Court Justices, but there’s a chance he’ll end up making the court even more conservative. Legal scholars Lee Epstein and Andrew Martin have already crowned the current Supreme Court the most conservative court since the anti-New Deal court of the 1930s. Excepting the court’s recent 5-4 vote in favor of the Obamacare legislation, the court has been markedly conservative since 1970 and become even more right leaning in recent years.

The Huffington Post wrote in November that there are four justices that may retire in Obama’s next term. Ruth Bader Ginsburg (D) is 79, Stephen Breyer (D) is 74, Anthony Kennedy (R) is 76, and Antonin Scalia (R) is 76. Ginsburg and Breyer were appointed by Clinton, and Kennedy and Scalia by Reagan. Ginsburg is the most likely to retire; at 79, she is the oldest justice on the Supreme Court, and has already been diagnosed with cancer twice. Kennedy and Scalia, both 76, are also likely candidates for retiring in Obama’s second term.

Ruth Bader Ginsburg is known as one of the most liberal judges on the current Court, especially on issues of abortion, sexual equality, and international law. In an interview with The New York Times in 2009, when asked about the government’s role in abortion, she answered, “The government has no business making that choice for a woman.” A Times article in 2009 revealed that Ginsburg believes the US Supreme Court should turn to international law for inspiration, believing that Supreme Court rulings in other countries can provide valuable insight into the American legal system. More conservative justices, in contrast, believe in strict, context-based interpretation of American law.

Anthony Kennedy and Antonin Scalia demonstrate conservative perspectives. Kennedy seems to be more of a conservative libertarian, making decisions on a case-by-case basis instead of conforming to a partisan ideology. He voted to mandate that parents of minors be informed of abortions in Hodgsons v. Minnesota (1990) and has also voted to uphold laws criminalizing partial birth abortion. In terms of gay rights, he swings moderate to conservative, voting to allow the Boy Scouts to ban gay members from being scoutmasters in 2000.

Scalia is perhaps one of the court’s most conservative justices, a vehement federalist and an originalist, believing that the Constitution should be interpreted exactly as the Founding Fathers wrote it. In 1992, Scalia wrote a dissenting opinion on Planned Parenthood v. Casey in which he stated that there is no constitutional right to abortion and that he strongly believes that Roe v. Wade should be reconsidered.

During the presidential campaign, neither Romney nor Obama focused on potential Supreme Court appointees. The president’s ability to potentially nominate as many as three new Justices was used more for fear mongering than as a campaign platform. In August, Obama argued that Romney’s potential appointees “could tip the balance of the court in a way that turns back the clock for women and families.” Later, in October’s Rolling Stone, Obama said, “Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.”

During his last term, Obama appointed two Supreme Court Justices, Sonia Sotomayor and Elena Kagan. Sotomayor and Kagan are both considered fairly moderate liberals on the court, but neither had an easy path to the bench, what with the Senate’s narrow Democratic majority. Sotomayor was confirmed 68-31 in the Senate, and Kagan was confirmed 63-37. In contrast, the Democratic congress that confirmed Ginsburg in 1993 voted her in with a 96-3 tally.

The 113th Congress, which will begin sessions on January 3, has a Democratic Senate, 55 Democratic and 45% Republican. Justices are appointed through a floor vote in the Senate; with a Democratic majority, it seems as though Obama would have no trouble pushing through a liberal justice. However, given the intense criticism both the Republican and Democratic parties received during the campaign for their stubborn partisanship, it seems likely that Obama may push for a more moderate nominee in order to bypass a drawn-out and bloody confirmation process. He would have to pick a nominee that appeals to both parties: a moderate liberal like Kagan or Sotomayor or a centrist like Kennedy.

Given that the Supreme Court is already markedly conservative, the replacement of Ginsburg with a centrist or a moderate liberal will push the court further to the right. Replacing Kennedy or Scalia with a moderate liberal or a centrist will either keep the court equally conservative or perhaps push it further to the right, if a more conservative centrist replaces Kennedy.

What does this mean for the American public? Essentially, the Supreme Court is already very conservative; despite Obama’s reelection, the court is probably not going to be more liberal in the near future. Key pieces of liberal legislation, like Roe v. Wade and Regents of University of California v. Bakke—a case that established a legal basis for affirmative action—could be overturned. Likewise, more conservative decisions could be enacted in the coming years. The appointment of new Supreme Court Justices, while not as attention-grabbing as Obama’s reelection or the polarization of the House and the Senate, could have dramatic and lasting effects on the lives of the American public.