The future is bleak for democrats and judicial liberals. The average age of the four conservatives is 60.75 years (Roberts(53), Scalia (72), Thomas(60), Alito(58)). The average age of the four liberals, however, is 75.7 years (Stevens(88), Souter(69), Ginsburg(75), Breyer(70)). Justice Stevens, an active octogenarian and avid tennis player who frequently reads briefs on the beach at his home in Florida, is old even by Judicial standards and is nearing the Court record for age (90 years) and tenure (36 years.) Justice Ginsburg has survived cancer and appears frail to many people although friends and family will tell you that she has always appeared that way to strangers. Justice Souter, at a sprightly 69, has been speculated to be growing weary of the Washington lifestyle and is rumored to be growing frustrated with his conservative colleagues. The Court as a whole is also ripe for change. The Court averaged one vacancy every two years until it remained the same for a record-shattering 11-years (1994-2005). At some point the Court will have to readjust and most logically that means a more steady stream of retirements at some point in the future.
The common consensus says that President Obama will have little opportunity to affect the Court in the long run with any nominations in his first term. If he replaces any combination of Justices Stevens, Souter, and Ginsburg, he will be replacing a liberal Justice with another nominee who will likely be a solid liberal.
That line of thinking is not flawed, but it does overlook the subtle impact that Justices have on the Court. After cases are voted on, the senior-most Justice on each side of the decision is tasked with delegating the responsibility of writing their opinion. Justice Stevens, the senior associate Justice both among the liberals and, after the Chief Justice, amongst the Court at large, has used his delegating authority skillfully to build consensus for his positions. He frequently comments on the importance of delegating opinion-writing responsibly and he has often given the opinion to Justice Kennedy when he wasn’t solidified on the liberal position. Similarly, he claims to have taken several opinions for himself in order to write an opinion that could most easily attract four other Justices. If Justice Stevens retires, the senior-most Justice in a liberal 5-4 decision would be Justice Kennedy himself and it is difficult to predict how he would handle that responsibility. What is clear, however, is that with 14 years of experience as the Senior Associate Justice and 33 years on the Court, few Justices know how to handle the responsibility better than Justice Stevens.
President Obama will also have the chance to re-energize the ailing liberal bloc. While appointing young judges to the Court would do little in the short-run to counter the conservative revolution, depending on the number of Justices he can replace, he can give the next like-minded President the opportunity to seriously sway the court. The popularity of Justice Scalia within the academic and law community has undoubtedly had an impact on the way his distinct opinions and jurisprudence are received in the legal community. The liberal wing of the Court lacks a clear ideological leader who can condense their complex ideology into an idea that can be popularly marketed to a public that is skeptical of the phrase ‘judicial activism,’ despite being more fond of its policy outcomes. President Obama may get the chance to appoint a nominee who can do for liberal jurisprudence what Justice Scalia has done for textualism and he should not shrink from that responsibility.
Regardless, talk of long-term strategy may also be premature. In 2005, Justice O’Connor shocked the legal world when she, seemingly in full health, retired at 75 to care for her husband who had fallen ill. Justices Scalia and Kennedy are both 72 and have served on the nation’s highest court for more than two decades. Chief Justice Roberts has had a history of epilepsy and most recently suffered a seizure while on vacation in 2007. Justice Thomas has also had a particularly poor relationship with the Washington political scene after his confirmation hearings turned into a media circus following a sexual harassment allegation by former staffer Anita Hill.