The next occupant of the White House, whether it is Democratic US President Barack Obama or Republican contender Mitt Romney, will likely have a rare opportunity to reshape the US Supreme Court.
As the top court nears a decision on the constitutionality of Obama’s flagship first term achievement — healthcare reform — people are reminded that it was this court that finally put an end to racial segregation, re-established the death penalty, affirmed Americans’ right to bear arms and probably next year will have the final word on gay marriage.
The court today arguably leans conservative, but the balance is precarious and three of the nine judges will turn 80 before the end of the next president’s mandate in 2017.
“[Former US] president [Thomas] Jefferson said that the problem with the Supreme Court is that they never retire and they rarely die,” Justice Stephen Breyer, counted among the more liberal members of the bench, said in an interview.
“We’re appointed here for life,” added the 73-year-old senior judge, who was appointed by then-US president Bill Clinton, a Democrat, in 1994.
If just one of the three oldest judges decided to retire, the appointment of a replacement from the opposite camp could tilt the balance of the court, and in turn, affect its decisions for a long time.
“Justices tend to retire strategically to permit ideologically sympathetic presidents to name their successors,” Supreme Court expert Tom Goldstein wrote on Scotusblog.com.
Actually, “the Supreme Court is deeply polarized and a 5-4 conservative majority holds sway on most [though not all] controversial and consequential decisions,” said Thomas Mann, an analyst with the Brookings Institute. “If Romney wins, that conservative majority could well hold sway for decades.”
The presidential candidates are aware of the stakes too.
“In his second term, he [Obama] would remake [the Supreme Court],” Romney said in a speech to the National Rifle Association. “Our freedoms would be in the hands of an Obama court not just for the next four years, but for the next 40, and we must not let that happen.”
Making a case for her husband’s re-election, US first lady Michelle Obama also reaffirmed at a campaign stop in Nashville in April “the impact the court’s decisions will have on our lives for decades to come, on our privacy and security, on whether we can speak freely, worship openly, and love whomever we choose.”
“That’s what’s at stake. Those are the choices that we are facing in this election,” she said, noting that Barack Obama had already appointed two women to the top court.