The 2008 Presidential Election and the Future of the U.S. Supreme Court

1. 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

2. 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.

3. 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.

4. Ideology and the Roberts Court (2005—) Liberal Moderate Conservative L --------------------------------------I-------------------------------------- R Roberts (R) Stevens (R) Alito (R) Souter (R) Kennedy (R) Scalia (R) Ginsburg (D) Thomas (R) Breyer (D)

5. The Vanishing Liberal JusticeIn the modern era, the Court has never been more conservative than it is now.Even the “liberal” justices are more moderate than their predecessors.

6. 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.

8. Life Expectancy: U.S. White Males v. U.S. Supreme Court Justices, 1940-2000.

9. 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.

10. 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.”

11. 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.

12. 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.

13. 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.

14. 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.