For all the drama surrounding the Supreme Court's much-anticipated ruling on President Obama's health care reform law, the Court has faded from public attention and not yet emerged as a major campaign issue. Yet with Republican challenger Mitt Romney surging in the polls, it's time to ask how a Romney Presidency might impact the nation's highest court.
The next president can expect to replace one, perhaps two, Supreme Court justices. Ruth Bader Ginsburg, who's 79 years old, is the justice most likely to retire. Of course the liberal Ginsburg wouldn't be eager to have Romney fill her seat. She's said she has no immediate plans to retire and hopes to stay on the Court at least as long as Louis Brandeis, who served until he was 82.
But Ginsburg may not have much of a choice. She has battled cancer twice and in 2009 was diagnosed with pancreatic cancer, one of the most deadliest forms of the disease. Only 5% of people diagnosed with pancreatic cancer survive past five years. Ginsburg is already on year three.
Ginsburg's cancer was caught early and is in remission. Perhaps she'll be, as I hope, one of the lucky ones. The odds, however, weigh heavily in favor of her retirement during in the next administration. A president Romney might also have the opportunity to name replacements for Justices Antonin Scalia and Anthony Kennedy, who are both 76.
If Romney were only to replace Ginsburg, the impact on the law would be enormous. Even though the Court, which splits five to four on the most divisive issues, already leans right, the liberal justices have won important victories thanks to Kennedy, who occasionally swings to their side. A conservative replacement for Ginsburg would give the Scalia bloc on the Court a solid five votes, even without Kennedy.
In a Romney Court, the liberals can therefore expect to be shut out on the high-profile issues, from civil rights and affirmative action to environmental law and federal authority to regulate commerce. The Court is currently one vote shy of overturning what remains of Roe v. Wade.
Despite Romney's recent move to the middle, don't expect him to name a moderate to the Court. He's repeatedly said he wants to nominate justices in the mold of Clarence Thomas, who is arguably the most conservative Supreme Court justice of the last 100 years. A recent study comparing justices' views to public opinion found that Thomas was more conservative than 97% of Americans.
Earlier in the campaign, Romney named well-known conservative Robert Bork to be one of his lead advisers on the courts. Bork, you may recall, was nominated to the Supreme Court by Ronald Reagan, only to be rejected by the Senate because of his extreme views on civil rights (he once claimed civil rights laws infringed white people's freedom of association), privacy (he called the Supreme Court's opinion protecting access to contraception "utterly specious"), and free speech (which, he said, did not protect artistic or literary expression).
Bork was also an early combatant in what is now known as the War on Women. He's said that the Constitution's guarantee of equal protection of the laws "should be kept to things like race and ethnicity," not gender or sexual orientation.
Even if Romney didn't follow Bork's advice on judges, Republicans in the Senate will not allow Romney to nominate anyone without a clear allegiance to conservative principles. Recall how Republicans reacted to President George W. Bush's nomination of Harriet Miers to fill the seat of Sandra Day O'Connor. Miers wasn't forced to withdraw by liberal Democrats but by conservative Republicans skeptical of Miers' ambiguous judicial philosophy.
The Court's ruling in the healthcare case will only make Republicans more determined to insure that the next nominee has a proven track record of support for their favored causes. John Roberts was thought to be a reliable conservative. Indeed, the vast majority of the chief justice's rulings have pleased the GOP. Yet Roberts' vote to uphold Obamacare was seen as apostasy in conservative circles. Some called him a "traitor," others accused him of turning the Constitution "into a worthless piece of parchment."
The Supreme Court may be below the radar for most voters, who this year are concerned primarily with jobs and the economy. Republican leaders, however, have not forgotten about Roberts and the high court. They are not about to let themselves be burned again.