Election’s winner may shape Supreme Court

Vacancies likely within next 4 years

From left, Justices Antonin Scalia, Anthony Kennedy, Elena Kagan, and Stephen Breyer were at the traditional Red Mass on Sunday, a day before the new Supreme Court session.
Jose Luis Magana/Associated Press
From left, Justices Antonin Scalia, Anthony Kennedy, Elena Kagan, and Stephen Breyer were at the traditional Red Mass on Sunday, a day before the new Supreme Court session.

Deeply divided, held in low esteem by the public, and battered by harsh criticism from both left and right, the US Supreme Court returns to work on Monday amid speculation that its makeup and ideological balance could change, perhaps significantly, depending on who is elected president in November.

The nine justices have an average age of 67. Several have battled health problems, and Justices Antonin Scalia, Anthony M. Kennedy, and Ruth Bader Ginsburg will pass their 80th birthdays in the next four years. Though court-watchers tend to tiptoe around discussions of the longevity of justices, who have lifetime appointments, they say it would be no surprise if more than one were to retire in the next four years.

Which justices leave — and whether President Obama or Mitt Romney wins the chance to nominate their replacements — could tip the balance on a court that has issued a string of 5-to-4 decisions on contentious issues, culminating in the ruling in June that enraged conservatives by upholding Obama’s signature health care legislation. The next president will also be able to put his stamp on federal circuit and appeals courts.


“It’s one of the president’s most lasting legacies,” said Susan Low Bloch, a professor at Georgetown Law Center. “It’s amazing to me that people don’t pay more attention.”

Get This Week in Politics in your inbox:
A weekly recap of the top political stories from The Globe, sent right to your email.
Thank you for signing up! Sign up for more newsletters here

For now, the Supreme Court is focused on its fall agenda, including an affirmative action case it is scheduled to hear next week that could end the use of race in public university admissions.

But the possibility that the court could also soon rule on same-sex marriage, abortion rights, and the scope of environmental and business regulations has heightened anxiety on both sides about its future composition.

And a retired justice, John Paul Stevens, has suggested that the court may also have to revisit its controversial 2010 ruling that lifted limits on corporate and union spending in elections, a decision that infuriated many liberals.

The public’s opinion of the court, meanwhile, is low: a Gallup poll published Friday found only 49 percent of Americans approved of the court’s performance, while 40 percent disapproved — up slightly from earlier this year, but still one of the court’s lowest ratings since the polling organization began asking in 2000.


Obama appointed two justices — Sonia Sotomayor in 2009 and Elena Kagan in 2010 — but neither reshaped the court, both replacing relatively liberal-leaning jurists.

Obama’s appointees have disappointed some of his own supporters, who view the choices as competent but uninspired and lacking the ideological fire of the court’s conservative members. He has also faced criticism for filling lower-court vacancies too slowly, though the president’s defenders say that has more to do with a broken confirmation process in the Senate.

Romney has pledged to use any Supreme Court nominations to tilt the court further to the right, continuing an aggressive effort by recent Republican presidents to install conservative justices.

“Republican presidents have made it a greater priority to appoint conservative Supreme Court justices than Democratic presidents have made it to appoint liberal Supreme Court justices,” said Richard H. Fallon, a constitutional law professor at Harvard Law School. “That’s not to say Democrats haven’t nominated liberals, but if you plotted people along a spectrum, Republicans have appointed justices that were significantly further to the right than their predecessors.

“If Romney were elected, I would expect that pattern to continue.”


Romney’s rhetoric and the composition of his legal advisory team would support that. He has promised to nominate judges “in the mold of Chief Justice Roberts,” who supported Obama’s health care law but is generally part of the court’s conservative wing.

And his circle of advisers is packed with prominent conservative scholars, led by Harvard law professor Mary Ann Glendon, a passionate opponent of abortion rights and same-sex marriage and former ambassador to the Vatican, and Robert Bork, the onetime Supreme Court nominee whose rejection by the Senate in 1987 made him an icon in conservative legal circles.

Romney’s track record in Massachusetts, however, suggests a more pragmatic streak. A Globe review in 2005 of his state court picks as governor found more than half were either Democrats or unaffiliated.

In an interview at the time, Romney said that because of the nature of the cases lower-court judges handle, he wasn’t concerned about their ideological background and instead was seeking nominees who had strong legal experience and would be tough on crime.

Legal specialists said that because those judges rarely deal with cases about charged social issues and complex regulatory matters, Romney’s selections provided little insight into the kinds of federal judges and Supreme Court justices he might choose.

“I wouldn’t draw any conclusions from his appointments in Massachusetts,” said Robert M. Bloom, a law professor at Boston College.

The only exception, he said, might have been if Romney had appointed a member of the Supreme Judicial Court. Romney criticized the court for “judicial activism” after its decision to legalize same-sex marriage but never had that opportunity to appoint any of its members.

“The environment here precluded any real ability for one to look back and examine what his philosophy would be on those higher, appellate-type appointments,” said Martin W. Healy, the chief legal counsel for the Massachusetts Bar Association. “His tenure as governor didn’t lend itself to that. There just weren’t vacancies.”

Healy said that Romney did pay significant attention to judicial nomination procedures, though, streamlining the process and instituting stricter ethics rules in an effort to remove political cronyism.

On the federal level, whichever candidate wins the White House will confront a nomination process that legal scholars describe as barely functional, with some nominations taking years to clear an intensely polarized Senate.

Obama, a former law professor, has faced criticism for appointing federal judges too slowly, especially in the first two years of his term. As of Friday, there 76 vacancies on courts of appeal, district courts, and the US Courts of International Trade.

The judges Obama has appointed, both for the lower courts and the Supreme Court, have typically been liberal-leaning but cautious, Fallon said.

“The attitude of [former president Bill] Clinton and Obama has been that it’s a mistake to ask the courts to be too liberal or too progressive, that we may want liberal or progressive politics but we ought to have a court that is more restrained and more deferential, and not so ready to invalidate legislation as the most ardent judicial liberals would think courts ought to be,” he said.

While Fallon said that Obama could have moved more quickly on court nominations, the president’s difficulty getting judges confirmed was a sign that Congress’s overall gridlock probably couldn’t be solved on its own.

“If you look at our polarized politics and all the things it stops from getting done, I think it’s hard to imagine that the nomination and confirmation process could be carved out, isolated from everything else, and fixed in a way that everyone would regard as reasonable,” he said.

Alan Wirzbicki can be reached at awirzbicki@globe.com.