“Presidents come and go, but the Supreme Court goes on forever.” – William Howard Taft, 27th President of the United States and 10th Chief Justice of the Supreme Court.
There will be no shortage of consequential issues at stake during the 2016 presidential election. But one issue looms larger than the rest, at least to those of us that follow the Supreme Court.
Several Justices are statistically likely to retire in the coming years. As of Election Day in 2016, three of the nine Justices will be more than 80 years old. A fourth will be 78. The average age of retirement for a Supreme Court Justice is 78.7, according to a 2006 study by the Harvard Journal of Law and Public Policy.
The next likely candidates for retirement include Justice Ruth Bader Ginsburg (82 – liberal icon), Justice Antonin Scalia (79 – staunch conservative), Justice Anthony Kennedy (79 – moderate swing voter) and Justice Stephen Breyer (77 – left-leaning Clinton appointee). It’s likely that whoever redecorates the Oval Office in 2017 will fill at least one of these spots on the bench.
While it should be noted that Justice John Paul Stevens, who retired in 2010, is still going strong at the age of 95, by the middle of the next president’s term there could be four justices in their 80s.
Justice Ginsburg has indicated that she has no plans to retire despite some liberal calls for her to do so while President Obama remains in office. By the end of the next president’s first term, she will be nearing 88.
If a Republican president were to name Justice Ginsburg’s successor, or a Democratic president gets to replace Justice Scalia, it could change the course of the Court on issues ranging from abortion to gun control – all of which are still hotly contested in lower courts and in the public arena.
While it’s possible that all the Justices hold out until a president of their own party replaces them, infirmity or illness may make that impossible.
[I]t’s been an awfully long time since a president had the opportunity to change the [C]ourt’s course. The last time a Republican managed it was when George H.W. Bush appointed Clarence Thomas to replace the retiring Thurgood Marshall. And Democrats? Believe it or not, it’s been over six decades since a Democratic president had the opportunity to replace a conservative justice; the last one to do it was John F. Kennedy, who appointed Byron White to a seat when Charles Evans Whittaker, who had been appointed by President Eisenhower, resigned in 1962. Paul Waldman, “Why 2016 Will be a Supreme Court Election” available at TheWeek.com.The Robert’s Court is one of the most polarized (along party lines) in recent memory, having decided a host of important issues by 5 to 4 margins. Depending on which seats become vacant under which president, there could be a dramatic change on the Court.