If the next president wins two terms, regardless of the party, the Supreme Court could reach a near ideological monopoly unknown in the post-World War II era of American History, perhaps a monopoly never achieved since FDR's eight Supreme Court nominations. However, FDR presided during a time when both parties had liberal and conservative wings; therefore, there was more ideological overlap in a judicial nomination, even if he/she was from the opposing party. With two deeply divided parties, the next president has a crucial influence on the future of the Supreme Court that is rarely discussed as we get closer to the 2016 election.
Using the data below, I have developed a probability for the future of the Supreme Court. The results are worthy of discussion leading up to the next election.
Age and Experience of the 9 Justices
By election year 2016, the ages/years of service for the current nine Supreme Court Justices are as follows:
Roberts (61/11), Scalia (79/30), Alito (65/10), Thomas (67/25), Kennedy (79/28)
Ginsburg (82/23), Breyer (77/22), Sotomayor (61/7), Kagan (55/6)
Moving forward to reelection year 2020 for the new president, we get these numbers for the nine judges:
Roberts (65/15), Scalia (83/34), Alito (69/14), Thomas (71/29), Kennedy (83/32)
Ginsburg (86/27), Breyer (81/26), Sotomayor (65/11), Kagan (59/10)
The ages/years in 2024 of the nine judges:
Roberts (69/19), Scalia (87/38), Alito (73/18), Thomas (75/33), Kennedy (87/36)
Ginsburg (90/31), Breyer (85/30), Sotomayor (69/15), Kagan (64/14)
Sotomayor Now consider the retirement/death age of the last nine judges:
John Paul Stevens retired after 34 years at age 90,
David Souter retired after 19 years at age 69.
Sandra Day O'Connor retired after 24 years at age 75.
William Rehnquist died in office after 33 years at age 80.
Harry Blackmun retired after 24 years at age 85.
Byron White retired after 31 years at age 76.
Thurgood Marshall retired after 24 years at age 83.
Lewis Powell retired after 15 years at age 79.
William Brennan Jr retired after 34 years at age 86.
This gives us an average of 26.4 years on the bench with a range of 15 to 34 years.
This gives us an average retirement age of 80.3 with a range of 69 and 90.
Verdict: Probability of the Replacement of the 9 Justices
Using an average of 26-27 years on the bench and age range of 80-81, I have determined the range and probability of our nine current judges.
Scalia, Ginsburg and Kennedy will probably be replaced during the presidency of the president elected in 2016, but with a replacement range between Obama to whoever is elected in 2024.
Thomas, Breyer and Alito are likely to be replaced during the presidency of the president elected or reelected in 2020, with a replacement range between 2016 through 2024 for Thomas and a range of 2020 to 2024 for Breyer and Alito .
Roberts, Sotomayor and Kagan are likely to stay on the court beyond 2024.
Is A Liberal or Conservative Court in Our Future?
With a conservative and two liberals likely not going anywhere, the next president will probably replace three judges (two conservatives and a liberal). The president elected or reelected in 2020 will replace three judges (two conservatives and a liberal). Currently, the court has a 5-4 conservative majority.
Here are the probable outcomes of a post-Obama Supreme Court, depending on who gets elected in the upcoming elections:
- Two Democrat terms could yield an 8-1 liberal majority of the court.
- Two Republican terms could yield a 7-2 Conservative majority.
- A single Democrat term, followed by a Republican term gives us a 5-4 liberal majority.
- A single-term Republican followed by a single-term Democrat also gives us a 5-4 liberal majority.
In all, it is likely that conservatives will only keep their majority if they win in both 2016 and 2020.
3 Possible Factors that Could Prevent a Near Ideological Monopoly of the Court
1. We have already had three two-term presidents in a row. This has happened only once before, during the Jefferson/Madison/Monroe administrations. We have never had four two-term presidents in a row.
2. A judge may not vote along with the views of the president that nominated him/her. A judge may change their views over time or a swing judge may be appointed in order to win the confirmation of the Senate. A swing judge is likelier in the case of ideological monopoly.
3. A judge may choose to never retire for the sake of keeping the Supreme Court balanced,or for other reasons; however, note that Chief Justice Rehnquist is the only judge to die in office since 1954.
CORRECTION: A previous version of this post indicated that Justice Alito is 10 years older than he actually is.