SCOTUS Spotting: How the Next President Could Change the Supreme Court

Romney or Obama could significantly change the makeup of the highest court in the land — and the rules on everything from gun control to abortion rights

  • Share
  • Read Later
Getty Images Stock

Every four years Supreme Court watchers try to guess how many Justices the next President will be able to appoint — and what those new appointees would mean for the law. For some reason, during this campaign season the media and the public do not seem to be thinking much about this question — far less, say, than about shirtless photos of a vice-presidential candidate — but they should be. It’s not just a legal parlor game: court appointments over the next four years could rewrite the rules for everything from gun control to abortion rights.

(MORE: Cohen: The Latest Crime-Solving Technique the Gun Lobby Doesn’t Like)

There is no way of knowing how many vacancies there will be during the next presidential term, since Justices are appointed for life. But there is a reasonable chance that there could be one or more. Four of the current Justices are over 74, including Stephen Breyer, who turned 76 last week, and Ruth Bader Ginsburg, who is 79. Justices sometimes step down for personal reasons, as Sandra Day O’Connor and David Souter did in recent years.

Even a single Justice can have a profound impact on the country. We saw just how profound this year, with the Supreme Court’s 5-4 ruling upholding the new national health care law. With the Supreme Court sharply divided along ideological lines — as it has been for years — there are a large number of hot-button issues on which one new Justice could make a major difference.

Take campaign finance, for example. In 2010, the court handed down a controversial ruling in Citizens United v. Federal Election Commission, holding that corporations have a constitutional right to spend unlimited amounts of money on federal elections. The most important issues in the case were decided by a 5-4 vote. This ruling was wildly unpopular — one poll found that 62% of Americans oppose it. But the court shows no signs of backing away from it.

(MORE: Cohen: How to Solve the Voter-ID Debate)

Supporters of campaign-finance restrictions have been talking about trying to undo it by passing a constitutional amendment, but the best chance of reining in corporate influence on elections would be if President Obama is re-elected and one of the conservative Justices left the Court. If that happened, there might well be five votes to overturn the Citizens United ruling.

Guns are another issue on which a single appointment could make a huge difference. In 2008, the Supreme Court struck down the gun-control law of Washington, D.C., and held for the first time that the Second Amendment protects an individual’s right to own guns. The court decided this case, District of Columbia v. Heller, by a 5-4 vote. But if President Obama were to replace one of the conservative justices, the court could overturn Heller — giving government far more leeway to pass gun-control laws.

On the other hand, if Mitt Romney is elected and one of the liberal Justices departed, the court could rewrite constitutional law on issues like gay rights and abortion. In 2003, the Supreme Court ruled that laws criminalizing gay sex are unconstitutional. If Romney, as President, got to replace one of the liberal Justices, there could be five votes to allow states to pass these laws again.

(MORE: ‘Personhood': How Mississippi’s Proposal Could Affect Everything from the Drinking Age to Abortion)

A Romney presidency could also mean the end of Roe v. Wade, the landmark 1973 decision establishing the constitutional right to abortion. Romney recently said that he would “love” it if the court reversed Roe. Predicting votes on the court is hardly a science, but some court watchers believe that the addition of one more conservative Justice could ensure that the ruling is overturned. If that happened, states would be free — as they were before 1973 — to make abortion illegal.

There are many other important issues on which a single Supreme Court change could make all of the difference, from whether bans on gay marriage are constitutional to the use of the death penalty to the future of affirmative action. So it is not hard to see why both President Obama and Romney are avoiding talking about it — neither side is eager to take up a subject that has so many hot-button social issues embedded in it. But considering how high the stakes are, voters should be demanding answers from both sides.

MORE: Robert Rules: What Health Care Decision Means for the Country

18 comments
Sort: Newest | Oldest
Rusty Kuntz
Rusty Kuntz

Although this is an important political/national issue, it is not very smart to talk about it. People in America believe in the separation of power, the worst thing that would happen is one party completely dominating all branches of the national government; Democrats and Republicans that are trying to win the votes of the undecided are not going to make themself out to look like power hungry political looking to take control to the H.O.R, the Presidency and the Supreme courts, although that is exactly what both parties are trying to do.

TimeMagaz
TimeMagaz

Human Beings: Like a prophet jails bad spirits the islam will be Shut for 1000 years as the punishment for arrogant muslims to explain them who are the ruler above islam created by Human. See islam always attacks the other religions so now all religions will attack muslim as their enemy. That is the Real Karma for the Sins of islamic ego.

Monono
Monono

Its a pity that so many americans whose parents arrived in the US in the same miserable manner in which todays illegals arrive, have no sympathy for illegal migrants. America belongs spiritually only to the red indians. All of you are descendants of thieves who stole America from  its real owners. President Obama has once more shown good sense, comapassion and christain charoty by opening the door to his fellow man.

Papa Foote
Papa Foote

YES, "we" are going to "change" many "things" - "VOTE", FOR YOUR "CHOICE", IT'S IMPORTANT!

-The Old Goat-

Yamanoor Srihari
Yamanoor Srihari

You know, a child could make the predictions you made, with a little bit of background and history. What a waste of time! 

Drew P Balls
Drew P Balls

How many times can people run the same stupid article - did you actually write any of this or did you simply go back to the last 20 years of articles and piece this together??  What crap journalism...

Firozali A.Mulla
Firozali A.Mulla

A carrot and

stick issue again if you ask me. A Greek exit from the eurozone would be "manageable" even if it would be expensive and result

in higher unemployment, a top member of

theEuropean Central

Bank was quoted as saying on Monday. In an

interview with the Frankfurter Rundschau, Joerg Asmussen, a German member of

the ECB's Executive Board, was asked about the possibility of debt-wrackedGreece being forced out of the eurozone. "First: My preference is

clear. Greece should stay in the eurozone. Second: It is in Greece's hands to

achieve that. Third: A Greek exit would be manageable. Fourth: An exit would

not be as orderly as some imagine," he said. Such an exit would

spark a slump in growth, job losses and would be "very expensive. In

Greece, in Europe and in Germany," said

Asmussen. Asmussen's comments came at the start of a crunch week for

Greece as it bids to persuade its European partners to release a further slice

of aid to keep its economy on life support and enable it to stay in the

17-nation bloc. Prime Minister Antonis Samaras holds talks with German Chancellor Angela Merkel in Berlin on Friday and with French President Francois Hollande the day after. Greek Foreign Minister Dimitris

Avramopoulos was in Berlin Monday for a meeting with his

German counterpart Guido Westerwelle to prepare the talks. All eyes are

on a key report from Greece's international creditors, known as the Troika,

expected in September. The report will assess Greece's reform progress

demanded to unlock some 31.5 billion euros ($38.9 billion) desperately needed

to keep the country afloat. On his foreign tour, Samaras is expected to

discuss the possibility of having two more years to achieve the required cuts.

Berlin has until now insisted that Athens must stick to the timeline and

reforms agreed in return for its aid package. But mass circulation Bild

reported on Monday that some concessions could be made to Greece within the

agreed timeframe. I thank you Firozali A.Mulla DBA We do make errors, but this wasn't it. While

the term has been recorded in various forms in Latin using various negative

particles (ne plus ultra, nec plus ultra, non plus ultra), in English the

"ne plus ultra" form is most prevalent. For what it's worth, ne was

the original Latin particle of negation.

 

A carrot and

stick issue again if you ask me. A Greek exit from the eurozone would be "manageable" even if it would be expensive and result

in higher unemployment, a top member of

theEuropean Central

Bank was quoted as saying on Monday. In an

interview with the Frankfurter Rundschau, Joerg Asmussen, a German member of

the ECB's Executive Board, was asked about the possibility of debt-wrackedGreece being forced out of the eurozone. "First: My preference is

clear. Greece should stay in the eurozone. Second: It is in Greece's hands to

achieve that. Third: A Greek exit would be manageable. Fourth: An exit would

not be as orderly as some imagine," he said. Such an exit would

spark a slump in growth, job losses and would be "very expensive. In

Greece, in Europe and in Germany," said

Asmussen. Asmussen's comments came at the start of a crunch week for

Greece as it bids to persuade its European partners to release a further slice

of aid to keep its economy on life support and enable it to stay in the

17-nation bloc. Prime Minister Antonis Samaras holds talks with German Chancellor Angela Merkel in Berlin on Friday and with French President Francois Hollande the day after. Greek Foreign Minister Dimitris

Avramopoulos was in Berlin Monday for a meeting with his

German counterpart Guido Westerwelle to prepare the talks. All eyes are

on a key report from Greece's international creditors, known as the Troika,

expected in September. The report will assess Greece's reform progress

demanded to unlock some 31.5 billion euros ($38.9 billion) desperately needed

to keep the country afloat. On his foreign tour, Samaras is expected to

discuss the possibility of having two more years to achieve the required cuts.

Berlin has until now insisted that Athens must stick to the timeline and

reforms agreed in return for its aid package. But mass circulation Bild

reported on Monday that some concessions could be made to Greece within the

agreed timeframe. I thank you Firozali A.Mulla DBA We do make errors, but this wasn't it. While

the term has been recorded in various forms in Latin using various negative

particles (ne plus ultra, nec plus ultra, non plus ultra), in English the

"ne plus ultra" form is most prevalent. For what it's worth, ne was

the original Latin particle of negation.

 

MACDONALDBANK
MACDONALDBANK

The

Republican Party; have now … officially -- self-destructed  -- on the grounds of homophobia amp;

religious corruption!

Someone left the door

of the asylum ajar -- the religious extremists are loose amp; they are all in

the Republican Party!  

Religion; is the biggest bully on the

block!

Mormons are nothing more than homophobic

bigots and lustful religious lunatics; who harvested women … attempting to scrutinize themselves; into eternity – without

success!

Robert Williams
Robert Williams

How about a nightmare article on how another 4 years of Obama could change the Supreme Court?

dmbfan93933
dmbfan93933

If the author or a Time editor (if such a position exists) - 

The link to this article on your title page reads:  How THE Romney or Obama Could Change the Supreme Court.

Unbelievable.  How did that not get caught by an editor or proofreader?

ricegf
ricegf

"But considering how high the stakes are, voters should be demanding answers from both sides."

Answers to what questions, exactly?

We know the political leanings each candidate will attempt to inject into the court - tilting government authority toward the federal or local level, for example, or restricting gun ownership rights versus restricting unfettered access to abortion.

To which questions are the answers in doubt?

romano71
romano71

To every-day questions, what is the point you are trying to make? I need to know if it's legal that I am going to be fired because I am gay. I need to know if I can get an abortion if I get pregnant after I am raped. I need to know if it OK for the person next to me in the theater, watching Batman, can carry an automatic assault weapon. If you think that the SCOTUS is the president playing politics, you are wrong. These are more than political statements, these are the lives of real people we are talking about. And to your point, when a Christian aggressively pursues a political point of view (without consideration for anything other than their own point) this becomes detrimental to their own religion, as it is perceived as a political extension with no basis in reality or logic. To illustrate you, it sounds INSANE to deny people of the right to marry because of  religious beliefs.

ricegf
ricegf

" I need to know if it's legal that I am going to be fired because I am gay."

Neither candidate supports firing due to membership in a protected class, nor do I.

"I need to know if I can get an abortion if I get pregnant after I am raped."

Neither candidate would oppose that, nor would I.

"I need to know if it OK for the person next to me in the theater, watching Batman, can carry an automatic assault weapon."

Neither candidate would think so, nor would I - nor has it been legal in my lifetime, nor probably in yours.

I hope you are much relieved, although to be honest a few minutes with google would have alleviated your concerns on this questions. Neither candidate has changed their position on these questions, after all.

"...what is the point you are trying to make?"

Exactly the point you have demonstrated so eloquently (and I do thank you, in all sincerity) - that the questions to which the author encourages voters to demand answers have already been answered! 

The problem is that some people insist on not listening, or rather, on picking straw man positions for the candidate they don't support in an effort to make that candidate look extremist ("Obama is a socialist" or "Romney will eliminate Medicare").

"...when a Christian aggressively pursues a political point of view..."

So you would argue that Mr. Obama and Mr. Biden, both Christians, shouldn't aggressively pursue a political point of view?  Rev. Martin Luther King was wrong to do so? Rev. Jesse Jackson should sit down and meekly accept social injustice?

Or do you mean that Christians who you imagine don't agree with you shouldn't pursue a political point of view?

Web Design Vizag
Web Design Vizag

No, you're not "a Christian by the grace of God." You're a Christian by accident of birth. It's disingenuous to say otherwise. Keep enjoying your delusions, but remember that they're not becoming in an engineer.

TimeMagaz
TimeMagaz

Human Beings: Like a prophet jails bad spirits the islam will be Shut

for 1000 years as the Punishment for arrogant muslims to explain them

who are the ruler above islam created by Human. See islam always attacks

the other religions so now all religions will attack muslim as their

enemy. That is the Real Karma for the Sins of islamic ego.

happydayfortennis
happydayfortennis

The worst is, "Southern by the Grace of God." No, you were not born in the South because God thought it was appropriate and preferred the southeast region of America more than any other place on Earth; you believe in God because you were born in the South, and you were born in the South because your parents happened to live there. 

dmbfan93933
dmbfan93933

Most Christians do not realize that if they had been born in a Muslim country they would most likely believe in Islam.  The same applies to Muslims, etc.  

When it comes to religion, most people just DON'T THINK because religion excuses people from having to think and people are lazy.   

I'm not saying there are no thinking believers, just that they don't have to because they can always fall back on the faith argument.

That being said, Ricegf probably feels that being born in a Christian country is "by the grace of God".