A Test for Obama ? Maybe Not So Much

On Friday, March 13, 2009 Supreme Court Justice Ruth Bader Ginsburg hinted that there will be a vacancy on the Supreme Court soon. During a question and answer session with law students in Boston Ginsburg commented that the nine Supreme Court justices are only photographed together when a new member is apponted, saying

“We haven’t had any of those for some time, but surely we will soon.”

Although five of the nine justices are at age 70 or older, none has contemplated retirement in public. Given that Ginsburg, a Clinton appointee is battling pancreatic cancer, she is the odds on favorite as the next to be replaced, thus giving President Obama his first opportunity to re-shape the Supreme Court.

Of the nine justices seated on the court, 7 were appointed by Republican administrations. During the last Administration, President Bush appointed two justices, Chief Justice John Roberts, age 54 and Associate Justice Samuel Allito, age 58 His father, "Bush 41", appointed Justice Clarence Thomas, one of the younger members of the court at age 60, and Justice David Souter, age 69. Justice John Paul Stevens, the Senior Associate Justice at 88, is the oldest member of the Court and was appointed by President Ford. Antonin Scalia and Anthony Kennedy, ages 73 and 72 respectively, were both Regan appointments. Interestingly, two of the so-called "liberal" judges, Souter and Stevens, were appointed by republican presidents, thus skewing the presumption that judicial appointees will follow party platforms.

Assuming that President Obama will soon have his first opportunity to shape the future of the Supreme Court, it is unlikely that one appointment will result in any significant changes since there will still be a solid conservative bloc (Roberts, Scalia, Thomas and Allito). The critical "swing" justice is and will continue to be Justice Kennedy who has voted with the "liberals"on gun control, in supporting habeas corpus rights for Guantanamo Bay detainees, in favor of expanding Constitutional rights for sexual orientation, and against the death penalty applied to those who are mentall ill, under the age of 18 or for the rape of a child. Justice Kennedy likewise joined the plurality opionion which re-affirmed though narrowed Roe v. Wade in 1992 (Planned Parenthood v. Casey).

Therefore, unless President Obama has the opportunity to nominate and appoint three Justices, unlikely since the average age of the court is 69, it is unlikely that the Supreme Court will undergo any drastic change of judicial philosophy during this Obama administration. Conversely, the appointment of just one additional conservative justice would solidify the conservative voting bloc and present the opportunity for the court to review and reject stare decisis. Of course, Presidents do not always have crystal balls, and justices have been known to surprise their presidents once they enter the court's womb.