Antonin Scalia

How the Presidential Election Will Impact the Supreme Court

The winner in November may name one or more new justices. Shouldn't the voters get to hear more about it?


President Barack Obama and his Republican opponent Mitt Romney sparred over matters large and small in this month's three presidential debates, yet when it came to one of the most pressing issues in American politics, the two candidates were strangely quiet. There was not a single discussion about the president's central role in appointing new justices to the U.S. Supreme Court.

That silence makes even less sense when you consider the demographic forces at work. Of the Court's nine sitting members, four are now in their 70s, including 79-year-old Justice Ruth Bader Ginsburg, who recently underwent treatment for pancreatic cancer, a notoriously deadly affliction. America's next president may well have the opportunity to name one or more new justices to the High Court. Shouldn't the voters get to hear something about it?

Let's say Obama is reelected and Justice Antonin Scalia, now 76, ends up retiring for health reasons at some point during Obama's second term. As things currently stand, there are four votes on the Supreme Court to strike down the 2010 decision in Citizens United v. Federal Election Commission, which Scalia joined, and where the Court voided multiple restrictions on political speech by corporations and unions. In fact, just last term, Justice Ginsburg and Justice Stephen Breyer publicly urged their colleagues to accept a campaign finance case from Montana where the state's Supreme Court rejected Citizens United entirely. Agreeing to hear the Montana case, Ginsburg wrote in a statement joined by Breyer, "will give the Court the opportunity to consider whether, in light of the huge sums currently deployed to buy candidates' allegiance, Citizens United should continue to hold sway." Instead, a majority of the justices voted to summarily reverse the Montana ruling. If an Obama nominee replaces Scalia, however, the next challenge to Citizens United will face a far more receptive audience.

Crossing over to the other side of the aisle, let's say Romney wins and Ginsburg subsequently steps down. As the liberal University of California law professor Adam Winkler recently observed, "a conservative replacement for Ginsburg would give the Scalia bloc on the Court a solid five votes, even without Kennedy." The abortion-affirming 1973 decision in Roe v. Wade is perhaps the most prominent ruling under threat in that scenario, though a Romney replacement for Ginsburg would also be likely to move the Court in a more government-friendly direction on issues relating to executive power and the war on terror.

And speaking of 76-year-old Justice Anthony Kennedy, libertarians in particular should give thought to his eventual retirement. Although he's no card-carrying member of the limited-government movement—as evinced by his votes in favor of broad eminent domain powers and against letting states set their own medical marijuana policies—Kennedy is nonetheless the one justice currently on the bench who at least occasionally favors the basic libertarian mix of social and economic freedom.

Indeed, sometimes Kennedy even employs explicitly libertarian arguments. In his 2003 majority opinion in Lawrence v. Texas, for example, which struck down that state's sodomy ban, Kennedy repeatedly cited the powerful friend of the court brief filed by the libertarian Cato Institute, which explained why the Texas law was an unconstitutional exercise of state power.

Similarly, when the Supreme Court heard oral argument last March over the constitutionality of the Patient Protection and Affordable Care Act's individual mandate, it was Kennedy whose statements most closely tracked the libertarian legal movement's opposition to the law's unprecedented reach. "Here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act," Kennedy told Solicitor General Donald Verrilli, "and that changes the relationship of the Federal Government to the individual in a very fundamental way."

It's not easy to imagine either Obama or Romney selecting a Supreme Court nominee who will follow in Kennedy's unique footsteps.

So the stakes are high when it comes to the future of the Supreme Court. Too bad the voters didn't hear anything about it during 270 minutes of televised candidate chatter.

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  1. To be fair, the average voter knows next to nothing about what the Supreme Court actually does or how it works (even compared to how little the average voter knows about the other issues). Talking about Supreme Court appointee decision making would be even more useless than the foreign policy non-debate.

    1. I find this to be true of every branch outside of the executive. Every time I get an earful about what president (pick one) has done/did do, I want to start curbing people.

  2. Has SCOTUS shown any interest in reversing Roe v. Wade?

    That’s different, mind you, from a justice (e.g. Ginsburg) saying that they didn’t agree with how the case was decided. Clearly, some justices showed significant interest in finding some excuse to overturn Citizens United. I can’t say I’ve heard similar rumblings about Roe.

    1. No. There’s been a conservative majority for quite some time, but there’s not been any real effort to reverse Roe.

      1. That’s certainly what I’ve seen.

        So why in bloody fuck is Reason carrying water for the Democratic Party and it’s asinine abortion rights fear campaign?

        While they’re not 100% reliable, obviously, in nearly every case that I can think of, even where libertarian principles lost, like Raich or Kelo, the majority of “conservative” justices were on our side. What is in it for libertarian principles, to keep this stupid left-wing fear campaign alive?

  3. Barack Obama’s primary criteria in nominating a Supreme Court justice will almost certainly be whether the candidate would let something silly like the Constitution get in the way of whatever Obama wants to do.

    1. Senator Obama voted against the Roberts confirmation…whoops.

      1. Did Obama vote against Roberts because he knew Roberts would support his individual mandate?

        That doesn’t make any sense!

        I suspect Roberts’ support was as big a surprise to Obama as anybody!

        There’s no question that a Supreme Court nominee is like a box of chocolates…

        Still, Obama will nominate justices that he expects to make rulings like that. Obama will nominate justices that are proud of making rulings like that…

        Romney’s nominees, if they make rulings like that? It’ll be because they went against what everyone expected them to do.

        …and that’s a big difference between Romney and Obama.

        1. My point…

          Roberts was painted as a strict constitutionalist. Turns out he’s not and apparently he’s very concerned about the image of the court. After ACA and Kelo, I can no longer expect anything from any of these judges and neither should you. Unless you want to be disappointed that is. Should we hope for judges strong on civil liberties and property rights…of course. However, I have a feeling that they are getting harder and harder to find. The person chosen to select the judges would like to see the expansion of the leviathan and it will be hard to go against that instinct in the selection process.

        2. “I suspect Roberts’ support was as big a surprise to Obama as anybody!”


          Most of us don’t trust the black robes as far as we can throw them.

  4. If neither major-party candidate is likely to nominate someone like Kennedy except by accident, aren’t the stakes actually *low*? Either way, we’re getting a partisan dipshit.

  5. USSC and Health Care are really the only arguments I accept where it is reasonably guaranteed that Romney will be better than Obama.

    1. Nope.

      His cabinet is reasonably guaranteed to be better than Obama’s also.

      Not a gang of avenging libertarians on pale horses or anything, but better than Obama’s? No question. It would be VERY hard for Romney not to do better, even by accident.

      We have an AG who sent guns to Mexican gangs on purpose, without hidden tracing devices or something that might have actually been clever. We have an Energy Secretary who WANTS gas to go up to $10 a gallon. That’s just the low-hanging fruit…

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  7. If you believe that Obama would use the extra $80 billion in revenue extracted from the rich to reduce the deficit, I have an 11-page glossy jobs pamphlet for you. And Obama’s tax on the rich would hit more than 1 million small businesses, according to the Internal Revenue Service, which would make his tepid supply-side policy item?the kind of policy he regularly mocks, incidentally?useless.
    coach outlet, Still, according to a Bloomberg survey of selected economists, under Obama’s plan, “13,000 jobs would be created in 2013, bringing the total to 288,000 over two years.” That’s hundreds of billion in spending?deficit spending?aimed at creating a few unsustainable jobs without the benefit of any real private-sector outlet

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