The Supreme Court Stakes

One issue that has being largely ignored over the course of this long campaign is the next president's power to significantly alter the make-up of the Supreme Court. Here is a list of the current justices and their ages:


John Paul Stevens, 88
Ruth Bader Ginsburg, 75
Antonin Scalia, 72
Anthony Kennedy, 72
Stephen Breyer, 70
David Souter, 69
Clarence Thomas, 60
Samuel Alito, 58
John Roberts (Chief Justice), 53

Above, the justices colored blue tend to be more judicially liberal and the justices colored red tend to be more judicially conservative. Justice Kennedy, who is colored black, is a moderate and a swing vote in the court.

Over the course of the next four years, it is likely that at least two of the current justices will step down.

Justice Stevens in 88 years old, and is the most likely to retire. He was probably hoping desperately for John Kerry to win the presidency in 2004 so he could retire, but has since stayed the course through Bush's second term in hopes of a Democrat replacing him on the bench in.

Justice Ginsburg is the second oldest on the court and has had a bout with cancer in the past. It is widely believed that she wants to retire in the next four years, but like Stevens, she is on the liberal side and most likely wants to wait for a Democrat to replace her.

Justices Scalia and Kennedy are the next oldest, but show no real signs of wanting to retire. The same is true for Justices Breyer and Souter.

Justices Thomas, Alito, and Roberts, who are all very conservative, are very young for Supreme Court justices and will all probably serve for at least another twenty years (unless, God forbid, something were to happen to them).

Now, let's look at how the courts will change under the next president. Let's assume that Stevens and Ginsburg will retire in the next four years.

If Barack Obama is elected president, he would replace those two old liberal judges with two younger liberal judges, thus maintaining the equilibrium in the court and the liberals and conservatives will remain evenly split. Think of it as maintenance work. His judges would most likely support a "Living Constitution," which means they would support adapting the interpretation of the Constitution to fit with the times.

If John McCain is elected, we would see a much more drastic shift in the court. He would replace the two retiring liberal judges with younger conservative judges and will undoubtedly act to further his party's philosophy. He voted for the Roberts and Alito nominations, both of which Obama opposed, and he holds up both as models for the kind of judges he would appoint. The court would flip strongly in favor of the conservatives, and the court's decisions would reflect that majority.

It is likely that Roe v. Wade would be overturned, which would be a nightmare for liberals everywhere. The conservative majority would also probably eliminate race-based preferences in the public sector (affirmative action), strengthen the government's role in fighting terrorism, and might even facilitate a larger role for religion in public life, among many other things.

Clearly there is a lot more at stake in this election than most people realize. This election is about more than just the economy, the war in Iraq, alternative sources of energy, health care, you name it. It is about the future of the many issues that many Americans hold dear, and most of them probably don't even realize that their vote in this election could affect many of those things in the long haul. I am amazed that the court has gotten so little attention.