WASHINGTON – The future makeup of the U.S. Supreme Court has received little attention this election, despite the fact that four justices are in their 70s and are divided on a whole range of critical issues – including abortion and potentially gay marriage.
But the issue could be making a comeback thanks to Vice President Joe Biden raising the issue in Thursday’s debate by saying Roe v. Wade is on the line and “the next president will” get to replace “one or two Supreme Court nominees.” That remains to be seen, although the odds are that with the court’s age, at least one justice will retire – which would either strengthen the court’s Roe majority or tip the balance to set up a reversal of Roe, the 1973 decision that legalized abortion nationwide.
Jordan Lorence, an attorney who has argued a case before the Supreme Court, told Baptist Press that three issues are at play in determining whether a justice retires: age, health and the political party of the sitting president.
Four justices are in their 70s: Ruth Bader Ginsburg (79), Antonin Scalia (76), Anthony Kennedy (76) and Stephen Breyer (74). Three of them – Ginsburg, Kennedy and Breyer – are on record as supporting Roe. Scalia has called for its reversal. If the court currently has a 5-4 pro-Roe majority, as many court-watchers surmise, then the retirement of any one of these four could have a major impact on legalized abortion.
President Obama and Republican nominee Mitt Romney have made no guarantees on court nominees – presidents and candidates rarely do – but both have implied they would seek nominees who agree with their judicial philosophy as well as their beliefs on Roe. Obama supports Roe while Romney opposes it.
“If Romney gets to pick Ginsburg’s replacement or even Kennedy’s replacement, that would be a huge shift,” Lorence, who works with the Alliance Defending Freedom, said. “And if President Obama picks the replacement for Scalia, that, too, would cause a huge shift on the court.”
Ginsburg seems to be the most likely one to retire. She was diagnosed with pancreatic cancer in 2009 and underwent chemotherapy and surgery, and reportedly had a healthy recovery. Ginsburg even may have a targeted retirement date. She has said she wants to stay on long enough so that her court tenure would surpass that of Louis Brandeis, the first Jewish member of the court who was nominated at age 60 – like Ginsburg – and retired at age 82. Ginsburg, also Jewish, would surpass Brandeis in 2015.
Scalia, Kennedy and Breyer have made no hints about potential retirement.
Historically, justices have timed their retirement so that the party that nominated him or her is in power and can name a replacement. If that holds, then Ginsburg and Breyer – nominated by Democratic President Bill Clinton – would retire only if Obama wins, and Scalia and Kennedy – nominated by Republican President Ronald Reagan – would step down only if Romney wins.
But things don’t always go as planned, and that’s when the court’s balance can change dramatically.
Liberal Justice Thurgood Marshall – nominated by Democratic President Lyndon Johnson – was forced to retire in 1991 due to poor health during the administration of Republican George H.W. Bush, who replaced Marshall with a conservative, Clarence Thomas. Marshall died two years later. Marshall had voted with the pro-Roe majority in 1973, and Thomas has since gone on record as opposing Roe.
Death also can have an impact. Chief Justice William Rehnquist passed away in 2005 while in office, although it did not have an impact on the court’s ideological balance because he was nominated by a Republican (Richard Nixon) and his successor (John Roberts) was nominated by a Republican (George W. Bush). If 2004 Democratic nominee John Kerry had defeated Bush, though, then the court’s balance could have been impacted.
If Obama wins, Lorence said, “I think we could see a stronger likelihood of Breyer and Ginsburg retiring, but all that would be doing is swapping a younger liberal justice for an older liberal justice.”
But if Romney wins, he’d potentially have the opportunity to appoint a replacement for Scalia or Kennedy. Naming Kennedy’s successor could have huge legal ramifications because he has been a swing vote on several major cases. He is the one pro-Roe justice who – if he sticks with tradition – will be replaced by a Republican president.
The five younger justices, barring a health issue or something unexpected, likely won’t retire soon. Two were nominated by Republicans: – Thomas (64) and Roberts (57) – and two by a Democrat (Obama) – Sonia Sotomayor (58) and Elana Kagan (52).
Roberts famously provided the fifth vote to uphold the health care law, but Lorence still considers him a conservative on “99 percent” of the issues.
“What he did with the Obamacare decision, in my mind, was unexpected but I don’t think he’s shifted from being a solid conservative to a moderate,” Lorence said.
(EDITOR’S NOTE – Michael Foust is associate editor of Baptist Press.)