The 2008 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
Institute for Continued Learning
Roosevelt University Schaumburg, IL
March 4, 2009
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 or more to nominate new
justices.
• We will also discuss the specific situations of Justices John Paul Stevens,
Ruth Bader Ginsburg, and David Souter – the Court’s three most liberal
members.
• 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 ideological lines as in the
“Bong Hits 4 Jesus” case Morse v. Frederick (2007) where the Court denied
a free-speech claim by a high-school student who displayed this banner at
a school-supervised event.
Ideology and the Roberts Court (2005—)
Liberal
Moderate
Conservative
L --------------------------------------I-------------------------------------- R
Roberts (R)
Stevens (R)
Souter (R)
Ginsburg (D)
Breyer (D)
Alito (R)
Kennedy (R)
Scalia (R)
Thomas (R)
The
Vanishing
Liberal
Justice
In the modern
era, the Court
has never been
more
conservative
than it is now.
Even the
“liberal”
justices are
more moderate
than their
predecessors.
High Court Succession
Table 2. 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.
Justice & Party ID
Date of Birth
Date of Initial
Service on Federal
Courts
John Paul Stevens (R)
April 20, 1920
November 2, 1970
November 2, 1985
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
September 17, 1939
May 25, 1990
May 25, 2005
June 28, 1948
March 12, 1990
June 28, 2013
Samuel Alito (R)
April 1, 1950
April 27, 1990
April 1, 2015
John Roberts (R)
January 27, 1955
May 8, 2003
January 27, 2020
Anthony Kennedy (R)
Stephen Breyer (D)
David Souter (R)
Clarence Thomas (R)
All justices began their federal judicial service on the Courts of Appeals.
All retirement eligible dates are based on the current Rule of 80. 28 U.S.C. 371 (C).
Date Retirement
Eligible under
Rule of 80
Life Expectancy:
U.S. White Males v. U.S. Supreme Court Justices,
1940-2000.
90
80
70
60
50
U.S. White Males
U.S. Supreme Court
40
30
20
10
0
1940 1960 1980 1990 2000
John Paul Stevens (R)
• Age 89 on April 20th.
• The leader of the Court’s liberal wing.
• Has undergone heart surgery, has a pacemaker,
and was treated for prostate cancer.
• Commutes from his home in Florida when the
Court is in session.
• If he doesn’t depart first, in the middle of the
2010 Term of the Court (February 2011),
Stevens will break the record held by Oliver
Wendell Holmes, Jr. for oldest justice (at nearly
91 years).
• Furthermore, the next year at the close of the
2011 Term (July 2012) he will break William O.
Douglas’ mark of 36 years, 6 months for
longest serving justice.
Ruth Bader Ginsburg (D)
• Age 76 on March 15th.
• Votes with the Court’s liberals in divided
cases.
• Fully recovered from colon cancer in 1999.
• Underwent surgery on February 5, 2009 for
“stage 1” pancreatic cancer. Doctors said
that the cancer has not spread.
• While some doctors estimate that her odds
of survival after 5 years are better than 50%,
the American Cancer Society lists the 5-years
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.”
David Souter (R)
• Will turn 70 in September 2009.
• Reliable liberal vote.
• In his book The Nine, Jeffrey
Toobin reported that Souter was
so distraught after the decision
in Bush v. Gore (2000) that he
nearly resigned.
• Other reports say that Souter
prefers his home in rural New
Hampshire to Washington, DC
and the fact that he is a
relatively private person leads
many to speculate that he will
depart sooner rather than later.
Potential Nominees
• With only one woman currently on the Court, it is almost a
virtual certainty that Obama will nominate one or more
women. Here are 5 women and 1 man to consider…
• Elena Kagan – Born in 1960, former Harvard Law School
Dean and current Solicitor General of the United States.
• Sonia Sotomayor – Born in 1954; grew up in a Bronx
housing project; first appointed to the U.S. District Court in
1992 by George H.W. Bush; currently a judge on the U.S.
Court of Appeals for the 2nd Circuit; would be the first
Hispanic Justice.
• Diane Wood – Born in 1950, currently a judge on the U.S.
Court of Appeals for the 7th Circuit.
• Kim Wardlaw – Born in 1954 to a Scottish-Irish father and
Mexican-American mother; currently a judge on the Court
of Appeals for the 9th Circuit.
• Jennifer Granholm – 49, Governor of Michigan and former
Michigan Attorney General.
• Deval Patrick – 52, first African-American Governor of
Massachusetts, former Assistant Attorney General for Civil
Rights in the Clinton Administration, close friend of Obama.
Conclusion
• Obama’s victory in the 2008 Presidential election virtually
ensured that the Court will remain divided 5-4 in the near future
as moderate liberal justices who depart 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.
• Yarbrough, Tinsley E. 2005. David Hackett Souter: Traditional Republican on the
Rehnquist Court. New York, NY: Oxford University Press.