Whoever wins the election this fall may be in a position to radically change the ideological makeup of the Supreme Court, a legacy that far outlasts a four-year term. On Wednesday, the nine justices will hear oral arguments over whether and in what ways universities can use the race of applicants as a deciding factor in admissions. Just nine years ago, the court upheld race in admissions in a 5-4 vote when swing justice Sandra Day O'Connor joined the liberal wing of the court for the decision. O'Connor has since been replaced by the much more conservative Samuel Alito, and some judicial experts think the relatively recent decision will be reversed, displaying how quickly court nominations have consequences on the law.
President Barack Obama has already appointed two new justices to the court and, if he's re-elected, he'll most likely get at least one more crack at it. There are currently four justices in their 70s on the aging Supreme Court, and three of them are within four years of 79, the average age at which justices have retired since 1970.
As we wrote last week, Romney would be in a better position to drastically reshape the court if he is elected, because the oldest justice right now is the liberal Ruth Bader Ginsburg, 79. Romney would choose a conservative-leaning justice to replace her, shifting the makeup of the court so that conservatives have six votes and liberals just three. Ginsburg has hinted she will step down when she's 82, which would be during the next presidential term.
If Ginsburg retires, Obama will almost certainly replace her with another liberal justice and the court will remain split between four reliably liberal justices and four even more reliably conservative justices, with Justice Anthony Kennedy swinging between them but more often siding with conservatives. Obama's two Supreme Court appointments kept the status quo: He replaced two retiring liberal justices with people of a similar ideological bent, leaving the balance of the court unchanged.
But two of Ginsburg's conservative colleagues are not far behind her in age, which means it's possible that Obama would be in a position to replace Kennedy or Antonin Scalia, both 76. (Stephen Breyer, a liberal on the court, is 74.)
If Obama is able to replace Kennedy, a moderate conservative, or the very conservative Scalia, the court's ideological makeup would change dramatically.
A left-leaning court could alter laws on same-sex marriage, gun rights, affirmative action, campaign finance, property and a whole host of other legal issues we might not even know about yet.
And such a move would have major consequences. Geoffrey Stone, the former dean of the University of Chicago Law School, found that if a liberal judge had replaced one of the four most conservative judges starting in 2002, the liberal wing of the court would have won 17 out of the 18 most important Supreme Court cases over the past 10 years, including Citizens United, which struck down campaign finance reform laws. Meanwhile, if a conservative judge had replaced one of the liberals, the conservative wing would have won 16 out of the 18 cases, including the health care reform case.
But first, the president would have to get such a person nominated—and it might not be an easy task. The Supreme Court confirmation process has become bitterly polarized in recent years, says Stone. Obama's first two nominees—Justices Elena Kagan and Sonia Sotomayor—both received an average of 35 "no" votes in the Senate, even though they were nominated to replace judges of a similar ideological bent and were both widely regarded as qualified for the job. In the past, such nominations sailed through, attracting an average of only three "no" votes, Stone says.
With the stakes so high on altering the makeup of the court, confirmation fights could get ugly. "There's a pretty good chance that the minority of the opposing party would do everything they could to prevent a shift," Stone said.
This suggests that the president could receive an all-out rejection from the Senate if he replaces a conservative justice with a liberal one in a second term. If that happens, Obama may be forced to look for a "stealth" candidate, one who has a thin judicial record on constitutional issues, to squeeze him or her through the confirmation process. Stone describes the perfect under-the-radar candidate as "somebody who everybody agrees is competent but nobody knows anything about." This approach can backfire on the president, however. Think about Justice David Souter. President George H.W. Bush nominated this stealth candidate to replace the court's liberal leader, William J. Brennan, without knowing where Souter stood on abortion, affirmative action and other issues. Soon after his confirmation, Souter defected from the conservative wing of the court, disappointing many on the right.
Obama's short list will most certainly be skewed toward female candidates, especially if Ginsburg retires on the president's watch. "There will be real pressure to appoint another woman on the court so there's no backsliding there," says Erwin Chemerinsky, founding dean at the University of California, Irvine School of Law. Diane Wood, a judge on the 7th Circuit Court, has been rumored to be on Obama's short list in the past, but she will be 62 this year. Presidents generally aim to nominate someone in their late 40s or early 50s for the spot, to maximize the length of their tenure.
Jacqueline Nguyen, a recent Obama appointee to the 9th Circuit Court, might fit the bill. She's in her late 40s and doesn't have an extensive paper trail on controversial constitutional issues. Nguyen also would be the first Asian-American on the court if nominated. Illinois Attorney General Lisa Madigan and California Attorney General Kamala Harris are also rumored picks. But both women would have to be willing to give up their promising political careers to take the posts. (Harris would be the first black woman appointed to the court.)
Paul Jeffrey Watford, another recent Obama appointee to the 9th Circuit Court who is in his 40s, might also be considered.
It's a guessing game that Supreme Court watchers will continue to play until there's a nominee—and one with significant consequences: Whoever makes the final cut, on either side of the aisle, could alter the court for years to come.
Correction: An earlier version of this article incorrectly stated Justice Clarence Thomas' age.