The 2012 Presidential Election
and the Future of the U.S.
Supreme Court
Artemus Ward
Dept. of Political Science
Northern Illinois University
http://polisci.niu.edu/polisci/faculty/ward/
aeward@niu.edu
Batavia Public Library
Batavia, IL
December 3, 2012
Introduction
• We will be discussing the succession process on the Supreme Court.
Because retirement decisions are partisan, we can expect President Obama
to have at least one opportunity and possibly two to nominate new justices.
• We will also discuss the specific situations of Justices Ruth Bader Ginsburg,
Stephen Breyer, Antonin Scalia, and Anthony Kennedy – the Court’s four
oldest members, most likely to depart in the coming years.
• Finally, we will mention a few of the names reported to be on the Obama
short list of potential nominees.
The Roberts Court is often divided 5-4 along party lines with the 5 Republican
justices voting together as well as the 4 Democrats. For the liberals to win, they
need one of the conservatives to switch sides as happened in the “Obamacare”
case National Federation of Independent Business v. Sebelius (2012) where Chief
Justice Roberts joined the liberals in upholding the Affordable Care Act under
congress’ taxing power.
Ideology and the Roberts Court (2005—)
Liberal
Moderate
Conservative
L --------------------------------------I-------------------------------------- R
Scalia (R)
Ginsburg (D)
Breyer (D)
Sotomayor (D)
Kagan (D)
Kennedy (R)
Thomas (R)
Roberts (R)
Alito (R)
The
Vanishing
Liberal
Justice
In the modern
era, the Court
has never been
more
conservative
than it is now.
Even the most
“liberal” justice
– Ginsburg – is
more moderate
than her
predecessors.
High Court Succession
Institutional Constraints on Partisan Departures in the U.S.
Supreme Court.
• Court Term - Justices retire when the Court is in recess. Often at the close
of a Term in late June or early July, on the last day when opinions are read
from the bench, the Chief Justice announces the retirement of the justice.
This allows the Court to have a full contingent of members during the Term
and, ideally, a new justice to be appointed before the new Term begins the
following October.
• Presidential Campaign - Justices do not retire in presidential election years.
Because the appointment process can be highly controversial, justices do not
want to add controversy by making a specific nomination a campaign issue.
• "Rule of Eight” - Two or more justices never retire at the same time. This
allows the Court to have the largest number of active justices, currently eight,
in case an appointment is not made before a new Term begins.
Retirement Eligibility and the Roberts Court.
Date of Birth
Date of Initial
Service on Federal
Courts
Date Retirement
Eligible under
Rule of 80
Ruth Bader Ginsburg (D)
March 15, 1933
June 30, 1980
March 15, 1998
Antonin Scalia (R)
March 11, 1936
August 17, 1982
March 11, 2001
July 23, 1936
May 30, 1975
July 23, 2001
August 15, 1938
December 10, 1980
August 15, 2003
June 28, 1948
March 12, 1990
June 28, 2013
April 1, 1950
April 27, 1990
April 1, 2015
June 25, 1954
August 12, 1992
June 25, 2019
John Roberts (R)
January 27, 1955
May 8, 2003
January 27, 2020
Elena Kagan (D)
April 28, 1960
August 7, 2010
August 7, 2025
Justice & Party ID
Anthony Kennedy (R)
Stephen Breyer (D)
Clarence Thomas (R)
Samuel Alito (R)
Sonia Sotomayor (D)
All justices began their federal judicial service on the Courts of Appeals except Sotomayor who began on the
Federal District Court and Kagan who began on the Supreme Court.
All retirement eligible dates are based on the current Rule of 80. 28 U.S.C. 371 (C).
Life Expectancy:
U.S. White Males v. U.S. Supreme Court Justices,
1940-2010.
90
U.S. White Males
U.S. Supreme Court
80
70
60
50
40
30
20
10
0
1940
1960
1980
1990
2000
2010
Ruth Bader
Ginsburg (D)
• Will turn 80 on March 15.
• Fully recovered from colon cancer in 1999.
• Underwent surgery on February 5, 2009 for “stage 1” pancreatic cancer. Doctors
said that the cancer was caught extremely early and did not spread. While some
doctors estimated that her odds of survival after 5 years were better than 50%, the
American Cancer Society lists the 5-year survival odds for stage-1 pancreatic
cancer at 21-37%. The median survival rate is 2 years.
• On February 21, 2009, U.S. Senator Jim Bunning (R-KY) made headlines when he
suggested that Ginsburg would be dead in nine months: “Even though she was
operated on, usually, nine months is the longest that anybody would live after
(being diagnosed) with pancreatic cancer.”
• Most expect her to retire at the end of the Court’s term in June 2015 when she
will be the same age as the Court’s first Jewish Justice Louis Brandeis was when
he retired.
• She said: "I'm going to stay as long as I can do the job. I probably will at least
equal him. But you have to take it year by year."
Stephen Breyer (D)
• The 74-year-old Clinton appointee is a reliable liberal vote but has sided
with the conservatives on occasion such as in the Establishment Clause
case Van Orden v. Perry (2005) upholding a Ten Commandments
display.
• Breyer, an athletic bike rider, certainly shows no signs of slowing down.
He and his wife recently faced down a machete-wielding intruder in their
Caribbean vacation home -- losing about $1,000 in the process -- so his
nerves must still be pretty good.
• In order not to conflict with Ginsburg’s likely plans, he would need to
depart in 2014 or sooner to avoid a double vacancy in 2015 or a vacancy
during the 2016 election.
• Therefore it is most likely that he will wait until after the next presidential
election – which of course could prove a huge mistake should a
Republican win.
Antonin Scalia (R)
• Age 77 on March 11.
• The intellectual leader of the Court’s conservative wing, his polarizing
personality and strong ideological views have made it difficult, if not
impossible, for him to exercise leadership in fostering majorities.
• Scalia is the first justice in history to admit publically that Supreme
Court justices only depart during favorable presidencies:
• “Of course I would not like to be replaced by someone who
immediately sets about undoing everything that I’ve tried to do for 25
years, 26 years. Sure, I mean, I shouldn’t have to tell you that. Unless
you think I’m a fool.”
• It would seem that Scalia will remain on the Court until at least June
2017. He will be 81.
Anthony
Kennedy (R)
• Will turn 77 at the end of the Court’s Term in July.
• Conservative vote who is the most likely among the
Republican justices to side with the liberals.
• He has favored abortion rights, gay rights, and the rights
of juveniles in criminal matters.
• He will be 81 at the end of the Term in 2017 – the first
chance a potential GOP President will have to nominate
a new Supreme Court justice.
Potential Nominee: Kamala Harris
• Because Ginsburg is almost certainly going to depart in the
next few years, the Obama administration will select a woman
to replace her. Much of the speculation has centered on
minority women…
• Kamala Harris – Age 47, she was given a prominent speaking
role at the 2012 Democratic nomination. She is the obvious
choice.
• She is the recently elected (2010) Attorney General of
California.
• Previously, she was twice elected as the District Attorney for
San Francisco (2004-2010); the chief of the unit heading civil
code matters in the San Francisco City Attorney’s Office
(2000-2004); the head of the career-criminal unit in the San
Francisco D.A.’s Office (1998-2000); and Deputy District
Attorney for Alameda County (1990-1998).
• Her mother (a breast cancer specialist) is from India and
raised her as a single mother; her father (an economics
professor at Stanford) is Jamaican-American.
• She graduated from Howard University as an undergraduate
and went to U.C. Hastings (San Francisco) for law school.
Potential Nominee: Caitlin Halligan
• Age 46, she has degrees from
Princeton and Georgetown Law, and is
a former law clerk to Justice Stephen
Breyer.
• She has served as New York’s Solicitor
General and is currently general
counsel for the Manhattan District
Attorney.
• She has also worked in private practice
for a major law firm.
• President Obama has nominated her
three times to serve on the D.C. Circuit
Court of Appeals but the Senate has
so-far filibustered her nomination.
Potential
Nominees
• Jacqueline Nguyen - 46, currently a
District Court judge in California with a
pending nomination to the Ninth Circuit.
• Kathryn Ruemmler - 40, White House
Counsel.
• Mary Murguia - 51, currently serving on
the Ninth Circuit Court of Appeals.
• Lisa Madigan - 45, Attorney General of
Illinois and former state senator.
Conclusion
• Obama’s victory in the 2012 Presidential election virtually ensures
that the Court will remain divided 5-4 in the near future. If the
moderate liberal justices depart, they will likely be replaced with
new moderate liberals.
References
• Toobin, Jeffrey. 2007. The Nine: Inside the Secret World of the Supreme Court. New
York, NY: Doubleday.
• Ward, Artemus. 2003. Deciding to Leave: The Politics of Retirement from the United
States Supreme Court. Alban, NY: SUNY Press.