General LawLegal Malpractice

Voting Judicially: the Impact of the Election on the Supreme Court

Supreme-CourtToday, November 6, 2012, Americans all across the country are heading to the polls to cast their ballots in what some pundits have deemed one of the closest Presidential elections in recent memory. However, the issue absent from most of the political discourse this election season is what impact the next President will have on our Supreme Court. Indeed, many Americans often forget that when a Justice retires from the nine member branch, they are replaced by a nominee handpicked by the President. With four Justices in their seventies (Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Antonin Scalia), there is a strong probability that the next President will get the opportunity to appoint one new Justice to the Court. With such a strong likelihood, why has this issued been overlooked by the current news media?

Perhaps part of the problem lies in the appointment system itself. While the President does get to hand select candidates for the Supreme Court, those nominees must then survive Senate confirmation. In the past, this confirmation served more as a formality.  Nowadays, with what some would call a more “deadlocked” congressional branch in general, partisan picks by the President are less likely to make it through the proceedings.  However, members of the President’s political persuasion are still likely to get on the Court. While there have been some exceptions in the past (Dwight D. Eisenhower once famously said that his appointment of Chief Justice Earl Warren was “the biggest fool mistake I ever made.”), Justices typically reflect the political ideology of their appointing President

Additionally, appointed Justices seem to get younger and younger. Currently there are three Justices under the age of sixty serving on the Supreme Court, including the Chief Justice, John Roberts. This means that any new Justices that are appointed during the next Presidential term are likely to serve for an extended period of time. Thus, they will be impacting legal principles and public policy for potentially decades to come.

With important social, economic, political, and personal issues decided by only one or two votes, the next Justice on the Court could ultimately determine the outcome of matters such as abortion, affirmative action, gay marriage, and the right to privacy in an electronic age. Thus, given the power the next Justice may have, maybe all of us should consider not only the policies of the Presidential candidates, but also who they will appoint to the Court when determining who to cast our ballot for.

Happy Election Day! We encourage everyone to get out and VOTE!