Question: Who would Barack Obama appoint to the U.S. Supreme Court?
Answer: The current composition of the Supreme Court is invariably described as conservative. Of the nine justices currently serving, seven were appointed by Republican presidents.
But the reality is that the Court can be best characterized as precariously center-right, on the verge of becoming a conservative Court under the next president. It is made up of four conservative justices (Alito, Roberts, Scalia, and Thomas), four liberal justices (Breyer, Ginsburg, Souter, and Stevens), and one moderate justice (Kennedy) who could probably best be characterized as center-right.
The four conservative justices range in age from 53 (John Roberts) to 72 (Antonin Scalia), with a median age of 61. The four liberal justices range in age from 68 (David Souter) to 88 (John Paul Stevens), with a median age of 75. This means that the next president is more likely to select replacements for liberal justices than conservative justices. That being the case, the election of Barack Obama lowers the stakes for Supreme Court appointments considerably.
But even among liberal justices, there remain gradations and considerable opportunities for shifts in the Court's overall dynamic. The most offensive property rights decision of the past 20 years, Kelo v. New London (2005), was decided by a a majority made up primarily of liberal justices. But there's certainly nothing about being a liberal or modernist justice that requires a candidate to take a dim view of property rights, and indeed a liberal justice who is concerned about the impact of gentrification on civil rights might be more amenable to preserving a broad interpretation of the Fifth Amendment's prohibition on land seizures.
Likewise, we can look at John Paul Stevens--who has the reputation for being a liberal justice--and find areas where he has not necessarily done what we would expect a liberal justice to do. His record on freedom of expression is particularly problematic, as he is the principal author of the 5-4 FCC v. Pacifica (1978) decision that allows the FCC to regulate indecency on broadcast channels. Today's more conservative Court would uphold that precedent by a larger margin--but unlike the Court, Stevens' views on free speech do not appear to have changed much in 30 years. In the Texas v. Johnson (1989) flag burning case, for example, Stevens wrote a dissent arguing that the government may legitimately ban the public desecration of national symbols without violating the First Amendment.
So even if the four conservative justices and Justice Kennedy are still on the job at the end of the Obama administration, there would be considerable opportunity to move the Court forward by appointing new people among the four-justice liberal bloc. That said, electing Obama would be more likely to preserve existing Court precedents on civil liberties, such as Roe v. Wade (1973) and Lawrence v. Texas (2003), than it would be to create new ones.
But the reality is that the Court can be best characterized as precariously center-right, on the verge of becoming a conservative Court under the next president. It is made up of four conservative justices (Alito, Roberts, Scalia, and Thomas), four liberal justices (Breyer, Ginsburg, Souter, and Stevens), and one moderate justice (Kennedy) who could probably best be characterized as center-right.
The four conservative justices range in age from 53 (John Roberts) to 72 (Antonin Scalia), with a median age of 61. The four liberal justices range in age from 68 (David Souter) to 88 (John Paul Stevens), with a median age of 75. This means that the next president is more likely to select replacements for liberal justices than conservative justices. That being the case, the election of Barack Obama lowers the stakes for Supreme Court appointments considerably.
But even among liberal justices, there remain gradations and considerable opportunities for shifts in the Court's overall dynamic. The most offensive property rights decision of the past 20 years, Kelo v. New London (2005), was decided by a a majority made up primarily of liberal justices. But there's certainly nothing about being a liberal or modernist justice that requires a candidate to take a dim view of property rights, and indeed a liberal justice who is concerned about the impact of gentrification on civil rights might be more amenable to preserving a broad interpretation of the Fifth Amendment's prohibition on land seizures.
Likewise, we can look at John Paul Stevens--who has the reputation for being a liberal justice--and find areas where he has not necessarily done what we would expect a liberal justice to do. His record on freedom of expression is particularly problematic, as he is the principal author of the 5-4 FCC v. Pacifica (1978) decision that allows the FCC to regulate indecency on broadcast channels. Today's more conservative Court would uphold that precedent by a larger margin--but unlike the Court, Stevens' views on free speech do not appear to have changed much in 30 years. In the Texas v. Johnson (1989) flag burning case, for example, Stevens wrote a dissent arguing that the government may legitimately ban the public desecration of national symbols without violating the First Amendment.
So even if the four conservative justices and Justice Kennedy are still on the job at the end of the Obama administration, there would be considerable opportunity to move the Court forward by appointing new people among the four-justice liberal bloc. That said, electing Obama would be more likely to preserve existing Court precedents on civil liberties, such as Roe v. Wade (1973) and Lawrence v. Texas (2003), than it would be to create new ones.
