With less than 12 months to go before the presidential election, the candidates have focused very little on the
Supreme Court in their campaigns.
But given the current ideological division on the high Court - four conservative justices, four liberal ones and Justice Anthony Kennedy as the crucial swing vote - the next vacancy could cause a major shift in the law on
abortion, the separation of church and state, the environment and affirmative action - particularly if a
Republican candidate wins.
"Assuming that [a
Republican] president puts another [John] Roberts or [Samuel] Alito on the court, it seems you have the beginnings of a true conservative working majority," said A. E. Dick Howard, professor of law and public affairs at the University of Virginia School of Law and a former law clerk of Justice Hugo L. Black.
Both of the Court's eldest members are liberal stalwarts. Last month, Justice John Paul Stevens became the second-oldest justice in
Supreme Court history when he reached the age of 87 years and 210 days. Only Oliver Wendell Holmes, Jr., who served until the age of 90, was older.
And though the spry-minded Stevens remains one of the bench's toughest questioners during oral arguments and is known to swim daily in the ocean near his Florida home, at the end of the first term of the next president Stevens would be nearly 93.
The Court's next eldest jurist is 13 years younger than Stevens. But Justice Ruth Bader Ginsburg, 74, is a cancer survivor and rumored to be in poor health.
Neither Stevens nor Ginsburg has given any indication that they are considering retirement, but the replacement of either with a conservative could trigger a significant rightward shift in a host of legal areas.
"It would make a huge difference," said Georgetown University law professor Susan Low Bloch. "The effects would be most dramatically felt in the areas of abortion, affirmative action, the Establishment Clause's separation of church and state - those are all given - but also in the areas of presidential powers and possibly criminal law. "
High stakes
To understand the impact the change of a single justice can make, one need look no further than the decisions handed down by the Court last term. Of the 75 decisions released in the 2006-2007 term, 21 were decided by a 5-4 vote. In all 21 cases, Kennedy voted with the majority.
In most of the 5-4 cases, the conservative justices were in the majority. These decisions included Gonzales v. Carhart, where the court upheld a federal ban on so-called "partial-birth" abortions, and Ledbetter v. Goodyear Tire & Rubber Co., where the Court held that the statute of limitations for a gender discrimination claim is not restarted with each unequal paycheck issued to a plaintiff.
Another 5-4 decision, Parents Involved in Community Schools v. Seattle School District No. 1, struck down race-based school integration plans in Seattle and Louisville, Ky., and stopped just short of banning the consideration of race altogether. In one of the closest cases of the term, Kennedy left the door slightly ajar for considering race in school plans, writing that it may be permissible in some circumstances.
On the flip side, the liberal justices' views prevailed in a 5-4 decision in Massachusetts v. EPA, where the Court ruled that the Environmental Protection Agency has the right, and almost always the obligation, to regulate greenhouse gas emissions.
The candidates
Despite the high stakes, the issue of potential Supreme Court nominees has not yet become a focus of the race for president.
But although issues like the war in Iraq have dominated the contest, the candidates have given some indication of the qualities they would seek in potential nominees - particularly on the issue of abortion rights.
The Republicans, almost unanimously, have stressed the importance of seeking judicial "originalists" who eschew activism and the idea of legislating from the bench.
Among the GOP frontrunners, former Massachusetts Gov. Mitt Romney has been the most direct in his comments about Supreme Court picks. In a Washington, D.C. speech before the Family Research Council in October, Romney said: "I will be a pro-life president. "I will appoint and fight for justices who follow the law and the Constitution, who understand judicial restraint, and who won't legislate from the bench. "
Arizona Sen. John McCain echoed that sentiment in a statement after the Supreme Court's Carhart decision.
"The recent victory on partial-birth abortion is an example of how important the Supreme Court is in protecting our values and interpreting the law as it is written," he said.
Former New York Mayor Rudolph Giuliani, who has said he personally believes abortion is wrong but has also called it an individual right, said the issue would not be a "litmus test" for a high court nominee. But in recent comments in Washington before members of the Federalist Society, Giuliani said he would look for judicial conservatives.
"We need judges who embrace originalism, endeavor to determine what others meant when they wrote the words of our Constitution," Giuliani said. "Justices like Justice [Antonin] Scalia, Justice [Clarence] Thomas, Justice Alito and Chief Justice Roberts - that would be my model. "
Meanwhile former Tennessee Sen. Fred Thompson, who was endorsed by the National Right to Life Committee last month, said he has voted with the organization "on every issue that came down the pike. "
The Democratic frontrunners, conversely, have been unanimous in their intent to select justices who would uphold Roe v. Wade.
In a statement after the Carhart decision, New York Sen. Hillary Clinton called the ruling "a drastic departure from four decades of Supreme Court rulings that upheld a woman's right the choose" and said "it is precisely this erosion of our constitutional rights that I warned against when I opposed the nominations of Chief Justice Roberts and Justice Alito. "
Former North Carolina Sen. John Edwards called Carhart "a perfect example of what's at stake in this election. "
"The kind of people that will be appointed to the U.S. Supreme Court by the next president will control whether a woman's freedom to choose . . . will be made by her, or will be made by the government, or made by some men sitting on the U.S. Supreme Court," he said.
And Illinois Sen. Barack Obama told NARAL Pro-Choice America: "I have consistently advocated for reproductive choice and I will make preserving women's rights under Roe v. Wade a priority as President. "
Although Ginsburg, speaking at an Atlanta synagogue in October, said she doubts Roe v. Wade will be overturned, some legal experts predict a different result if the GOP wins the White House.
The Court cannot unilaterally act to change precedent, and must wait for a case to come before it to consider the issue. But Bloch said that if the Court has a clear conservative majority, at least one state is likely to present a test case.
"Some state will pass a law that will give the Court an opportunity to reconsider Roe," she said. "The only reason the Court hasn't reconsidered it yet is no state has gone that far. "
Howard said the momentum is already there.
"The Court is already on the course of giving states and Congress more breathing space in regulating abortion," he said. "There would at least be an [acceleration] of that with a conservative nominee. "
And if Stevens and Ginsburg are both replaced?
"That would make a significant difference, and not just on abortion - on religious issues, affirmative action, the environment," Howard said.
A Democratic White House victory, by contrast, would mean little if any change on the Court.
"It would be a holding pattern," Howard said.
The variable across the street
Experts point out another important factor in determining the future of the Court and the areas of law it will affect: the lawmakers who work directly across the street.
If Democrats retain their control of Congress, then even if a Republican president is elected the fight over a staunchly conservative Court pick could be a fiery one.
"The future of the Supreme Court depends not only on who is in office but who controls the Senate," Howard said. "The issue is a little more complicated than who the next president will be. "
