With four of the nine Supreme Court judges in their 70s, it’s likely that one or more of them will be hanging up their robes during the next administration. Choosing who will fill any seats on the bench will be one of the more lasting legacies of our next president. And the social, economic and policy repercussions will shape our country for years to come.
During George W. Bush’s term he appointed judges Samuel Alito and John Roberts; the result was a conservative-heavy court that led to decisions in favor of super-PAC money (Citizen’s United) and gun owners’ rights (Columbia vs. Heller). Barack Obama tried to tip the balance back by naming liberals Sonia Sotomayor and Elena Kagan to the bench; those appointments contributed to Arizona’s immigration law, SB1070, being struck down and the Affordable Care Act being upheld. At the moment, the court consists of five appointees by Republican presidents and four by Democratic presidents, and decisions are often split along those lines. A notable exception was John Roberts' surprising vote in favor of upholding the health care act.
In the event of a vacancy, a President Mitt Romney would undoubtedly appoint judges who would be in favor of conservative causes such as overturning Roe vs. Wade. On the other hand, if Obama has an opportunity to replace one of the more conservative judges during his term, the court would see a liberal majority for the first time in over 40 years.With so much at stake, it’s surprising that both campaigns have been virtually silent on this important issue.
Who would you like to see on the nation’s highest bench? What important upcoming cases could impact your life, and how will the makeup of the court impact those decisions? Will you consider the next president’s possible Supreme Court appointments when casting your vote next Tuesday?
Erwin Chemerinsky, dean and professor of law at the UC Irvine School of Law.
John Eastman, former dean and professor, Chapman University School of Law, and founding director of the Center for Constitutional Jurisprudence