Who will be the first Supreme Court justice to resign? When? How many justices will Obama be able to appoint in the next few years, minimum? What’s a reasonable maximum for that number (IOW, what’s the total number of Justices eager to resign while a Dem. is president + the number of accidental vacancies from conservative judges?) Do you think Souter will resign during Obama’s term of office (not that his resignation will tilt the SC very much from Obama’s likely replacement)?
The current justices range in age from 53 to 88. None of them have any known major health problems. None of them have directly stated any retirement plans.
There are only two justices who were originally appointed by a Democratic President; Ginsburg and Breyer. Ginsberg is the second oldest justice at 75. Bryer is 70.
The oldest justice is Stephens at 88. He was originally appointed by a Republican (Ford) but he’s considered part of the liberal wing of the court now. Stephens is in relatively good health for his age and some argue he might wait until at least 2011 (when he will become the oldest justice in history) or 2012 (when he will become the longest serving justice in history) to retire.
The other liberal justice is Souter, who is 69 and was originally appointed by Bush (the first one). Souter is apparently the only current justice who has talked about an interest in retiring from the court.
The conservative wing of the court is Roberts (age 53), Alito (58), Scalia (72), and Thomas (60). Don’t expect any of them to retire in the next four to eight years.
Kennedy is 72 and is considered the swing vote on the court. He apparently likes being a power on the court and I doubt he’ll retire.
So the court balance is probably not going to change under Obama. At most, he might be replacing some current liberal justices with new younger liberal justices.
I expect Ginsberg to retire shortly, followed by Souter. Stephens will retire if he has any health issues crop up (which is likely, given his age).
That’s more of a crapshoot than one might think. Many a time a President has appointed someone they thought was close to their political beliefs only to see them turn out to be something different.
Little Nemo:
This isn’t quite true. Justice Ginsburg has had numerous health problems, including cancer, and is physically extremely frail. She was thought to be in potentially worse shape than Rehnquist, around the time that he was doing so poorly.
And there’s no way Justice Stevens, at 88, makes it through another full term without retiring, especially now that there’s a Democratic president-elect.
There’s speculation that Justice Souter is ready to step down fairly soon as well.
Um…your “at most” is a pretty huge thing. If we could get three Ginsburg, Stevens, and Souter clones (bearing in mind that of these, Stevens is the only one who could legitimately be characterized as an activist liberal in the mold of Brennan or Marshall; Ginsburg and Souter are generally pragmatic and careful in their judicial philosophies, kind of the liberal counterparts to Chief Justice Roberts) who were 45 years old, that would shape the Court for decades to come. That’s enormously significant.
John DiFool:
This isn’t quite true either. One of my first lengthy posts on the SDMB was a statistical analysis (based in part on a paper I’d written) of how often Supreme Court Justices ended up being more liberal or conservative than they were expected to be at the time of their nomination. You’d be surprised how few have tilted unexpectedly leftward upon reaching the Court – in the last seventy years or so, you’re basically looking at Warren (“the biggest damn fool mistake I ever made”), Blackmun, and Souter. O’Connor and (so far) Kennedy remained fairly consistent, subject mostly to structural and institutional dynamics causing them to assume the role of the fulcrum in an increasingly divided Court. And I’m pretty sure Ford knew that Stevens was going to be pretty liberal when he nominated him – I’ll have to see if that post is still floating around somewhere – although maybe not to the extent that he’s become with age. (On the other side of the coin, a similar handful of justices ended up more conservative than anticipated, including Byron White and, to a large extent, Warren Burger.)
Does Obama’s having taught consitutional law make him more qualified to appoint Supreme Justices, and/or will it influence his decisions in whom to appoint?
I can only hope so.
Well, it certainly means that if he gets a vacancy eight years from now, he can think about appointing himself.
The overall balance of the court is currently four conservatives, four liberals, and Kennedy in the middle to break the ties. That’s unlikely to change under an Obama administration - the most probable retirements will be liberals who Obama will replace with other liberals so the balance will 4-4-1.
If McCain had been elected, it would have been very different. The retirements would still be most likely to come from the liberals and McCain would most likely have appointed a conservative. And even a single appointment like that would have been a major change. As I said, the court is delicately balanced at 4-4-1. A single replacement of one conservative justice for one liberal justice would give the conservatives a five vote majority on the court. Kennedy and the remaining liberals could be ignored with impunity from that point.
So the appointment of three or four younger liberal justices wouldn’t really shape the court for years to come. It would just lock the court into its current shape for years to come.
Only in the procedural sense. Constitutional law as a class is essentially a history class of Supreme Court decisions. Most of the nominees to the Supreme Court these days are federal appellate-level judges who, while they likely have fleshed out or distinguished past Supreme Court decisions relating to constitutional law, likely wouldn’t have risen to the level of prominence to the degree he would know which federal appellate judges he necessarily likes/admires just from teaching the class.
…And give Kennedy and Scalia time to get old. We might just be arguing over semantics, but how is that not “shaping the court for years to come”? Its current shape is a shape. Ensuring that, at worst, the Court is (accepting your premise) 4-4-1 for the foreseeable future is an incredible feat in itself.
Given enough time, there will be a complete changeover in the court and all nine current justices will be replaced. But let’s talk a reasonable timeline; the four or eight years Obama will be President. My point was that it’s unlikely that the court will swing to the left during Obama’s administration - any appointments he’s likely to make will simply hold the line where it is. So Obama won’t shape the court because it’s already shaped. It’ll be Obama’s successor who’ll have a likely opportunity to change the nature of the court.
Still can’t tell whether we disagree on fundamentals or semantics, but whatever. The four or eight years that Obama is president isn’t a reasonable timeline when you’re talking about the Supreme Court, and I don’t know how someone as seemingly knowledgeable as you could think that it is. Supreme Court nominations have an influence spanning decades. It’s one of the most important ways that a President can shape his or her legacy. Let’s say that Ginsburg, Stevens, and Souter would all have retired by 2012 no matter who was in office. That means that rather than the balance shifting sharply rightward, Justice Sotomayor (58 in 2012), Justice Amar (54), and Justice Sunstein (58) get to shape the jurisprudence of the Court until 2032. (And an even younger nominee would shape the jurisprudence of the Court for even longer – Clarence Thomas was 43 when he was nominated. Neal Katyal, who I mentioned in another thread, would be 42 in 2012. To pick one name.) Are you seriously suggesting that the decisions made by the Roberts Court in the four or eight years that Obama is president will be more significant than all the decisions made in the twenty years afterwards?
Not to mention that by 2012, Breyer will be 74, and Scalia and Kennedy will be 76. Since three of the last four presidents have served two terms in office, it’s at least possible that there will be a Democratic administration until 2016. (And if I think the next eight years are going to have a huge impact on the composition of the Court for a long, long time – if we’re fortunate enough that Obama is re-elected (still holding my breath a bit for him to actually be inaugurated first, of course), it’s not unreasonable to believe that Alito, Roberts, Thomas, and one of Scalia/Kennedy will be the only Republican-nominated Justices amid a sea of younger Democratic appointments. That undoubtedly “shapes the court,” and it wouldn’t be possible without Obama appointing replacements for Ginsburg, Stevens, and Souter to begin with.
On that note, two more things:
First, as I’m sure you know, it’s way too simplistic to talk about “liberal” and “conservative” judges in terms of jurisprudence and judicial philosophy – not only are there many gradations on a left-to-right spectrum, both overall and with respect to varying issues, but you can have two liberal judges (or two conservative justices) who apply different interpretative methods to the same question to arrive at (a) different results; (b) the same result, but with vastly different implications for how that result is applied in future cases; or (c) partially the same result, but framed more broadly or more narrowly. There’s a significant distinction between a pragmatist like Breyer and an avowed counter-majoritarian like Brennan, or a textualist like Scalia and an originalist like Thomas – or, for that matter, an originalist like Amar and a judicial minimalist like Sunstein. (Hell, look at William Douglas and Felix Frankfurter: both functionally liberals, and both nominated by FDR with the hope that they would allow Congress free rein in enacting New Deal legislation like the APA. Both justices obliged, but as a result of completely divergent judicial philosophies which left them starkly at odds for years to come.) All of which means, to begin with, that the 4-4-1 split you talk about is only accurate in a general sense, and breaks down into complicated, shifting, cross-ideological alliances when you go legal question by legal question. And there are a number of important jurisprudential areas that can’t really be classified as having archetypally liberal or conservative positions. Is expanding the Chevron doctrine liberal or conservative? What about federal preemption of state laws? What about the scope of executive power? What about representation reinforcement? This in turn means that while Souter can accurately be characterized as “liberal,” it’s eminently likely that his replacement will have a judicial philosophy that is more liberal (or at least more effectively liberal, in terms of making more results-oriented liberal people happy and more results-oriented conservative people sad) in more areas of the law than Souter’s is, having the net effect of making the Court less conservative. Same thing goes for Ginsburg.
Second, it should go without saying, but there are a number of important qualities of an effective Supreme Court justice that have less to do with ideology or judicial philosophy and more to do with personality. For example, the ability of a justice (whether through leadership, collegiality, or sheer legal acumen) to persuade other justices, during conference and when opinions are circulated, to limit or expand their holding regarding a particular legal question is absolutely crucial. Similarly, a justice who can articulate their position clearly, cogently, and even engagingly through their writing is likely to hold more sway over the direction of the Court not only with their fellow justices, but with the legal community (including the academics who will be parsing the language of each opinion for interpretative value), the nation at large, the lower courts, and – something that gets overlooked – the law students who have to read these opinions year in and year out. A well-written opinion is more likely to persuade and (dare I say it?) shape the young legal minds of tomorrow’s politicians and judges and professors than a boring opinion that will be skimmed, regurgitated, and forgotten. When I was a district court clerk, Scalia came to speak to us, and I asked him why he was so acidly sarcastic in so many of his opinions and dissents (he smiled when I repeated the line about how he’s the only justice who could be said to write “scathing concurrences”). His candid response was that he was writing not for the Court or the legal scholars, but for the law students who would be required to read the cases in the future. He wanted to grab their attention, he wanted to make them laugh, and he wanted to change their views. Putting aside whether this is admirable or Machiavellian (or both), we don’t have a liberal justice on the current court who does that. So to the extent that Obama would nominate individuals with personal qualities that would make them more effective on the Court than Stevens, Ginsburg, and Souter have been (and each of them have been fine, in their own ways, but could certainly be improved on), that would be a significant impact even if the new justices were jurisprudential clones of the ones they were replacing.
That make any sense? It’s long, but this kind of stuff is fascinating to me.
In a related comment:
I’ve heard, though it may be libelous really, that Thomas tends essentially to piggyback on Scalia. Scalia, though, is quite a bit older than Thomas, and it seems likely that Scalia would leave the court before Thomas.
So, if it’s true that Thomas does tend to follow Scalia’s lead, should we expect that to continue with a different justice if Scalia were to step down, or is it simply the sheer force of Scalia’s personality that might cause something like that (again, if it’s really happening)?
My point was that two common beliefs about the Supreme Court are wrong.
The first is that the court is dominated by conservatives*. The conservatives and the liberals are in balance at the moment.
The second is that an Democratic president will be able to tip that balance to the left. As I’ve written, even if President Obama is able to make two or three appointments to the court during his term, the court will probably not be any more liberal afterwards than it is now.
I do see your point that a single justice can have influence beyond his actual power because of his lucid articulation of his views. But it’s a nebulous argument. The law is based on the actual decisions of the court not on dissenting opinions that carry no legal weight. If Scalia was the only conservative justice in the court then he would be just as effective in spreading his views via books and newspaper columns as he would via minority dissents.
*As an aside, I agree that it too simplistic to label the justices as liberals or conservatives. But I think you’ll agree that Roberts, Alito, Scalia, and Thomas share some common judicial principles and Breyer, Ginsburg, Souter, and Stevens share a different set of principles. It would be unusual, for example to see Roberts, Breyer, Scalia, and Souter vote one way on a decison and have Alito, Ginsburg, Thomas, and Stevens taking the opposite position.
It’s not true. While Thomas and Scalia vote together a lot, Ginsburg and Souter vote together more often. And no one accuses them of piggybacking on each other.
I am not a fan of the legal philosophy of either Scalia or Thomas (though Thomas is at least right on commercial speech) but it is wrong that people keep accusing Thomas of being either stupid (he is an incredibly bright, though very misguided man IMHO) or incapable of voting without Scalia telling him what to do.
That may have been true in the first year or two of Thomas’ service on the court, when he was relatively inexperienced. But I think he has long since found himself. While he and Scalia still often vote the same way, it’s because each has independently formed the same opinion, not because Thomas is imitating Scalia.
Okay, well, we disagree about much of what you wrote above, but I’ve spent too much time not working today, so we can leave it at that. 
Thanks for fighting my ignorance!
Is there a definitive source for that particular accusation/rumor? Did it spring from someone in particular?
There was a study cited, I think on the legal blog the Volokh Conspiracy, that looked at how often various justices voted together.
As to the source of the allegations about Thomas, a lot of it comes from the fact he tends to be very quiet in oral argument of cases. Some people mistake that for lack of attention.