THE SUPREMES: UNITED STATES SUPREME COURT, PRESENT AND FUTURE

The U.S. Supreme Court’s 2019-20 term has ended and the presidential election lies only about three months away. A link exists

between the Court’s work and presidential elections because nothing so symbolizes our divisive politics as control of the Court and the opportunity to shape its future.

Progressives viewed the term just completed with trepidation while conservatives had high hopes. The lineup of cases presented numerous opportunities for the conservative, Republican-appointed, majority to assert itself

on fractious issues. At the end, progressives breathed a sigh of relief and conservatives whined. One man – Chief Justice John Roberts – caused both reactions.

Chief Justice John Roberts

This is the Roberts Court

The spring of 2020 was an extraordinary time for Roberts. Besides presiding over the Trump impeachment trial, Roberts voted in

the majority in an astounding 97% of the cases the Court decided this term. Since the chief justice assigns writing the opinion in cases in which he votes in the majority, Roberts had total control of the Court’s voice. He wrote himself the decisions on the immigration case involving people brought to the United States as children that the administration might deport and the subpoena cases involving President Trump’s financial records. He strategically assigned other cases, like giving Trump appointee Neil Gorsuch the opinion in the case holding the sex discrimination provisions of the 1964 Civil Rights Act applicable to sexual orientation.

             

Roberts made clear he cares most about preserving the Court’s institutional reputation even if that overrides ideological and political interests. He sided with the Court’s liberals in a Louisiana abortion-rights case, even though he’d voted on the other side in a nearly-identical Texas case four years before. His position acknowledged the Court shouldn’t reverse a precedent so soon just because the lineup of justices changed. In the Trump subpoena cases, Roberts wrote for a 7-2 majority that no one, not even a president, is above the law.

When one justice exerts such overwhelming influence and does so in such a narrow way

on a court balanced on a knife’s edge on so many hot button issues, neither side can get comfortable. Conservatives railed about Roberts this term, claiming he abandoned the cause. One senator said he should resign. Liberals cheered his votes on immigration and abortion, but those votes rested on technical and procedural grounds, not philosophy. In subsequent cases on the same subjects with different facts or procedural circumstances, he could go the other way. 

The Future

With the election straight ahead, it’s fair to ask

where the Court goes from here. Two members of the liberal wing, Ruth Ginsburg and Steven Breyer, are over 80. The winner of the 2020 election will likely replace them. If Joe Biden

wins, his nominees wouldn’t “flip” the ideological balance. That would require the resignation or death of one of the five conservatives during Biden’s term. We can’t imagine any of them resigning and handing their seats to a Democratic president, barring a debilitating illness that made continuing in the job impossible. Of course, anyone can (1) die of a sudden, unexpected medical condition or (2) get run over by a bus. Nobody should expect either of those.

So, what would flip the Court? To make that a certainty, Democrats probably have to win the next four presidential elections. The ages of the current justices and the propensity most have for staying as long as possible while hoping a president of the same party as the president who appointed them can fill their seat, means most of the current membership of the court will remain in place 15-to-20 years or longer.

The two Trump appointees – Gorsuch and Brett Kavanaugh—are 52 and 55 respectively.

Neither will leave anytime soon. If they serve until the ages Ginsberg and Breyer are now, expect that the winner of the 2052 election would replace them.

The three other conservatives – Roberts, Samuel Alito, and Clarence Thomas – are

older, but not that old. Roberts, 65, could stay another 20 years, meaning the winner of the 2040 election might get to replace him. Thomas, the Court’s most rigid conservative, is 72 and has been the subject of retirement rumors he has denied. If Trump wins the 2020 election he might step down, but he won’t give Biden his seat if he can help it. Thomas could remain on the Court a long time, perhaps until after the 2036 election. Alito, 70, also could serve another 15 years if he wants to.

The two other liberals, Elena Kagan and Sonya Sotomayor, are 60 and 66,

respectively.  Changing the Court’s ideological makeup probably means a Democrat must win not only in 2020 but also in 2024, 2028, and 2032. That would probably assure that a Democrat replaces Kagan and Sotomayor and is positioned to replace a conservative who leaves during those years.

This analysis presumes neither party makes a “mistake” with a nominee – that no Democratic appointee lines up with the conservatives and no justice appointed by a Republican ends up voting mostly with liberals. We assume no Republican president will appoint a David Souter who so disappointed George H.W. Bush and his supporters. He, of course, also nominated Thomas, so conservatives really don’t have much reason for complaining about Bush 41.

Democrats have never made judicial appointments as important a part of their electoral calculus as Republicans. The reality of the situation with the Supremes now and in the future counsels a different approach.