A president’s legacy is often hard to discern, even after its been decades since they left office.
Why? Because their decisions are still writing decisions!
The justices and justices a president appoints have far-reaching consequences, and with life-terms, they often times end up becoming their living legacy. Hell, John Paul Stevens, a Gerald Ford-appointed Supreme Court justice retired only two years ago, and considering incredibly close SCOTUS decisions Stevens voted in and how he voted in them, it’s likely that this Republican-appointed justice is the reason that women retain the right to choose¹ and the reason that minorities can still receive special consideration from universities² (as long as there aren’t quotas!)
The point being that the justices that a president selects often times have larger historical impacts than the presidents themselves have.
So what does this have to do with this election?
Well, some presidents get lucky, some don’t. Some, like Jimmy Carter, don’t get to appoint a single Supreme Court justice, while another, like Ronald Reagan, might hit the jackpot and get to appoint four, including a Chief Justice!
This was followed by George H.W. who got 2 more conservative appointees in his term in office, and ever since their 6 appointee spree, conservatives have retained at least a 5-4 majority in the court, as Democrats received two appointments over Clinton’s two terms and Republicans received two appointments under Bush’s (Clinton got Ginsburg/Breyer, W. got Roberts/Alito)
Well ladies and gentlemen, President Obama might be about to hit the Judicial Jackpot as his predecessor Reagan did about three decades ago.
Thus far, Obama has already hit the average quota of two appointed justices in Elena Kagan and Sonia Sotomayor, however, with four more years, it’s likely he may be hitting the sweet spot to get some more, and might even flip the majority of the court for the first time in decades.
The court is aging. Ruth Bader Ginsburg is the oldest at 79 and has been hinting that this may be her last year on the court. The other Clinton appointee, Stephen Breyer, is also getting on in age, turning 74 just last August.
However, these are Clinton appointees and Obama appointing replacements for the two isn’t what makes this election so significant.
It’s the next two that should have conservatives worried. Antonin Scalia and Anthony Kennedy both turned age 76 earlier this year, both conservatives appointed by Ronald Reagan over 24 years ago. Looking at their age and comparing it to previous retirees, this should definitely be a cause of worry for conservatives and a cause to rejoice for liberals.
With the exception of John Pauls Stevens (who we mentioned earlier), all of the recent Supreme Court retirees have retired between the ages of 70 and 80; Souter at 70, O’Connor at 76, and Byron White at 76.
This means that on top of the two justices he has already appointed, Obama is currently in the position to potentially make four more Supreme Court appointees.
Is he likely to get all of them? Of course not, but he doesn’t need to. Scalia and Kennedy are his targets, and this next four years is likely going to become a staring contest between the Old Guards of the conservative wing of the court and President Obama, as with Ginsburg retiring soon, he will already be at three appointees and if either Scalia or Kennedy retire, President Obama is going to be the president to flip the majority to the liberal wing for the first time in the Court in about 2 decades.
With recent decisions like Bush v. Gore, Citizens United, the Arizona Immigration Law and the Healthcare Reform rulings being decided by thin majorities and largely partisan votes, and the questions of Gay Marriage, Voting Rights, and Affirmative Action facing the court on the horizon, Obama’s re-election is more significant than you might think.
¹ Casey v. Planned Parenthood
² Grutter v. Bollinger & Grutz v. Bollinger