How Will Obama Shape the Courts? Like his Cabinet--Move it to the Middle

We always hear the phrase "Elections have consequences". In this case, one of the ancillary consequences of the election of Barack Obama is a "hold" or even a shift of the Supreme Court, for the first time in many years. Here is the quick breakdown of positions:

On the Right (4):

1. Antonin Scalia--Appointed by Ronald Reagan in 1986, Scalia is considered the champion of the Right, or the self-proclaimed "strict constructionists". He has made a career of bringing Conservative ideology to the court, and is a personal friend to folks such as VP Dick Cheney. At 72 years old, though Scalia is getting older, but he is not going anywhere. He would never voluntarily leave during a Democratic administration.

2. Clarence Thomas--Appointed by George HW Bush in 1991, Thomas is considered with Scalia, as the Conservative darling. He has endured scorn from the left on the controversy surrounding his appointment in the Senate Confirmation hearings, but has been a Conservative Stalwart. Most Supreme Court biographers tout Thomas as the Conservative point of view, even more than Scalia. At just 60 years old, Thomas is a "spring chicken" on the court, and should continue to influence decisions for years to come.

3. John Roberts--Chief Justice--Appointed by George W. Bush in 2005--at just 53 years old, Roberts has the opportunity to be one of the longest serving Chief Justices of all time. He has talked about trying to foment a more consensus-based court, and has taken care not to allow his decisions to be too broadly applied (perhaps a "minimalist"-type of approach). But he is decidedly on the Conservative end of the spectrum, and despite some health scares a few years ago, should be a Champion of the Right's causes for years more.

4. Samuel Alito--Appointed by George W. Bush in 2006--like Roberts, Alito is relatively young (58 years old), Conservative, and not going anywhere for a while.

On the Left (4)

1. John Paul Stevens--Appointed by Gerald Ford in 1975--At 88, Stevens is probably going to retire over the next 4 years. As a sign of how the court has shifted, Stevens was considered a Centrist during his early years on the court, but has become part of the left block in more recent years.

2. David Souter--Appointed by George HW Bush in 1989--At 69, Souter is not considered old by Supreme Court Standards, but there are rumors he is interested in retiring from the Court. The Souter appointment is widely seen in Conservative circles, as the mistake of a generation. Souter was appointed by a Republican President, but immediately reflected positions much more to the left of the overall court makeup. He is still the rallying cry from the Right as the example of who NOT to choose for any future Conservative Presidents.

3. Ruth Bader Ginsburg--Appointed by Bill Clinton in 1993--At 75, Ginsburg is considered the most liberal of the Court members. She is also in poor health, and would like very much to retire under a Democratic Presidency. It looks like she will get her wish.

4. Stephen Breyer--Appointed by Bill Clinton in 1994--At 70, Breyer has been a solid liberal on the court, and has been considered very collegial. His viewpoints are very reasoned, and will take principled stances for more conservative viewpoints, if they fit his reasoning patterns. There is no sign he is interested in retiring, but at 70, he may decide he's had enough.

In the Center(1)

1. Anthony Kennedy--Appointed by Ronald Reagan in 1988--At 72, Kennedy has been a centrist. He has been Conservative leaning at times, but for the most part, he has been considered a "swing vote" on most issues, especially since the retirement of Sandra Day O'Connor in 2005.


The Three Justices most likely to be replaced during the next four years are Stevens (age), Ginsburg (health), and Souter (wants to leave). The reason that Obama's potential replacements wouldn't change the court, per se, is that most of the Justices considering retirement are Left-leaning, and Obama's choices would be replacements of a "Lefty" with a "Lefty". That could all change if any of the other 5 Justices were to leave the court during the next 4 years.

If there is a fourth retirement, other than Breyer (and that could well happen, given the age of most of the Justices), there could be a real shift in the court to the left. I don't anticipate that happening, but if anyone like Scalia or Kennedy need to be replaced, it would represent a real opportunity for Obama to shape the court for years to come, in his own image. The battle in the Senate Confirmation hearings would be fierce.

Top considerations for Justice appointments? Names like Massachusetts Governor Deval Patrick (52), Elana Kagan (48), who has served in the Clinton administration, and is close with Obama, Ruben Castillo, who is also the US District Judge for Northern Illinois, and even folks like Jennifer Granholm, Governor of MI, or a dark horse like Joe Lieberman, Senator from CT have been thrown around.

In the end, the next Supreme Court appointments will most likely reflect a stabilization of the court, providing the Left with a block of votes that should endure, and prevent the court from shifting right. The Conservatives must hope that Obama chooses Justices like he has chosen a Cabinet, much more from the center than the left. While the changes in the court shouldn't necessarily shift the position of the Supreme Court, it will solidify both voting blocks, and probably keep the court in the middle for the forseeable future. Roe v Wade should stay the law of tha land for a while, for all the Liberals out there. Nothing gets decided this go round. Conservatives will have to soldier on for this cause. Looks like Obama will end up getting the Court right where he wants to get the country--in the middle.