Next US president could reshape Supreme Court

Chantal Valery
The U.S. Supreme Court leans conservative today, but the balance is precarious

WASHINGTON, United States of America – The next occupant of the White House, whether it is Democratic President Barack Obama or Republican contender Mitt Romney, will likely have a rare opportunity to reshape the US Supreme Court.

As the top court nears a decision on the constitutionality of Obama’s flagship first term achievement — health care reform — we’re reminded that it was this court that finally put an end to racial segregation, re-established the death penalty, affirmed Americans’ right to bear arms, and probably next year will have the final word on gay marriage.

The court today arguably leans conservative but the balance is precarious and three of the nine judges will turn 80 before the end of the next president’s mandate in 2017.

“President Jefferson said that the problem with the Supreme Court is that they never retire, and they rarely die,” Justice Stephen Breyer, counted among the more liberal members of the bench, told AFP in an interview.

“We’re appointed here for life,” added the 73-year-old senior judge who was appointed by Democratic president Bill Clinton in 1994.

If just one of the three oldest judges decided to retire, the appointment of a replacement from the opposite camp could tilt the balance of the court, and in turn, affect its decisions for a long time.

“Justices tend to retire strategically to permit ideologically sympathetic presidents to name their successors,” wrote Supreme Court expert Tom Goldstein on

Actually, “the Supreme Court is deeply polarized and a 5-4 conservative majority holds sway on most (though not all) controversial and consequential decisions,” Thomas Mann, an analyst with the Brookings Institute, told AFP.

“If Romney wins, that conservative majority could well hold sway for decades.”

The presidential candidates are aware of the stakes too. “In his second term, he (Obama) would remake (the Supreme Court),” Mitt Romney said in a speech to the National Rifle Association.

“Our freedoms would be in the hands of an Obama court not just for the next four years but for the next 40, and we must not let that happen.”

Making a case for her husband’s re-election, First Lady Michelle Obama also reaffirmed at a campaign stop in Nashville in April “the impact the court’s decisions will have on our lives for decades to come, on our privacy and security, on whether we can speak freely, worship openly, and love whomever we choose.”

“That’s what’s at stake. Those are the choices that we are facing in this election,” she said, noting that President Obama had already appointed two women to the top court.

Progressive judge Ruth Ginsburg, a 79-year-old justice nominated by president Jimmy Carter who has survived two cancer operations, is considered most likely to be the first to retire.

Swing vote

“The odds are good that Justice Ginsburg will retire in the third year of a second Obama term,” commented Tom Goldstein on

The justice, appointed by Bill Clinton in 1993, “has sent signals that correspond with a likely retirement at that time,” he said. She will be 82.

Ultra-conservative Antonin Scalia, 76, is also set to depart, but only if Romney wins the election.

Anthony Kennedy, also nominated to the bench by a Republican president, at age 75 “might resign.” He is “the most powerful justice in the court now, he’s the guy that always makes the five votes in the majority, he’s the swing vote,” said Clyde Wilcox, a professor at Georgetown University.

“Lot depends on who is nominated, it is not because Obama nominates someone that he would be automatically confirmed” by the Senate, he told AFP.

“If he (Obama) is re-elected, there’s a good chance that the Republicans might block liberal judges at the Supreme Court.” – Agence France-Presse