Notwithstanding all the babble about the economy, foreign policy and the bumbling Romney campaign, the issue most likely to affect a generation or more of America’s immediate future is the impact this election will have on the Supreme Court. Presidents have relatively limited impact on cyclical economic patterns, though one can be legitimately fearful of a return to insensitive policies that favor business over the rights, welfare or prosperity of workers. Such legislation, as well as environmentally insensitive pro-corporate legislation, can if necessary be rescinded with a future election. Foreign policy is dictated more by events than by the unilateral acts of the occupant of the Oval Office.
Supreme Court appointments in the next four years, however, will define the constitutional direction of the nation for at least a quarter century. Age is not the only factor, but constitutes a variant in the Court’s balance of power equation. Four sitting Justices were born in the 1930’s. Three of those, should they survive, will become octogenarians over the four year term of the next President. The fourth will reach 78. They are, by current age: Ginsburg (79), Scalia (76 and six months), Kennedy (76) and Breyer (74). To fully set the field, Thomas and Alito are in their 60’s, with Roberts, Sotomayor and Kagan in their 50’s.
There is more context to this though. In recent decades, Supreme Court changes have roughly corresponded to judicial philosophy. Conservatives have tended to replace conservatives; liberals have tended to replace liberals. The one exception is the replacement of moderate Sandra Day O’Connor with much further right Samuel Alito. This one change in philosophy gave us Citizens United (O’Connor made clear that she would have voted the other way) and presents a potential future threat to Roe v. Wade.
The four most likely to be replaced in the foreseeable future include two “liberals”, Ginsburg and Breyer, and two “conservatives”, Scalia and Kennedy. By the way, do not be deceived into falling for the common spin that Kennedy is a swing vote. He votes with the conservatives more than 80% of the time, and has been ranked (admittedly by liberal sources) as ninth most conservative Justice in Supreme Court history.
Understand this. If a liberal, say Obama, gets to replace even one conservative, the Court flips from conservative to liberal in its overall philosophical bent. If a conservative, say Romney, gets to replace even one liberal (Ginsburg has all but promised she will resign during the next four years), the Court’s conservative bent will become unshakeable. If either Obama or Romney gets to replace three, or perhaps all four of the eldest Justices, the shift will be unassailable for a generation or more.
The election matters and will for years to come. Whether your issue is preserving or overturning key cases like Citizens United and Roe v. Wade, or advocating a particular constitutional perspective that you believe is in keeping with America’s spirit and founding, this election is more likely than any in 30 years to truly matter. And, lest we forget, it is not just the presidential election that matters, but the Senate with power to confirm or deny that is in play as well.