President Obama’s Appointements and the Future of the Supreme Court

Since Barack Obama was elected to the presidency, he has been able to nominate two Supreme Court Justices. First came Justice Sonia Sotomayor, the first ever Latina woman, and the third woman ever to be nominated to the Supreme Court. Sotomayor came in to replace Justice Souter. Justice Souter had been nominated to the Supreme Court by George H.W. Bush. Bush did not know Souter well, however, it was expected that Souter would practice judicial restraint. It turned out, Souter would turn out to be a political moderate, who, in later years would side with the liberal end of the court more often than he would the conservative side.[1] Sotomayor, on the other hand, did not make any qualms about her judicial philosophy; Sotomayor is clearly a believer in a “living, breathing” constitutional philosophy. In her first year of cases with the Supreme Court she was a reliable member of the liberal bloc on the court, voting with justices Breyer and Ginsburg 90% of the time.[2]

Because of Souter’s liberal lean throughout his tenure on the court, Justice Sotomayor does not change the dynamic of the court much at all. Elena Kagan on the other hand was not as open about her views when she went before the senate for confirmation. However, considering that the Democrats had a large majority at the time of the confirmation, getting a liberal justice through the senate was not going to be a difficult task for President Obama. While allegations vary from calling her a closet activist to an obvious moderate, all agree that she is likely going to be a part of the liberal bloc upon the Supreme Court.[3]

However, from these slight changes, can we predict where the structure of the Supreme Court is headed? Currently the oldest member of the Supreme Court is Justice Ginsburg, and still, for the Supreme Court 77 is not that old.[4], and by Supreme Court standards that is not quite retirement age. I believe that the structure of the court will be affected mostly in the short term in whether or not President Obama gets a second term. If Obama gets a second term in office, then Ginsburg, and/or Breyer may be compelled to step down so that he may be able to fill their place with someone who holds similar views to their own.

Considering the ages of the more conservative Supreme Court Justices on the court, it is likely that all of them will be able to outlast both terms of Obama’s office (if he has two). If a conservative president is elected after that, it is likely that the Reagan appointees, and possibly even the George H.W. Bush appointees might retire, however, I would suspect that the second Bush’s appointees will remain on the court through probably another presidency after that.

The two main factors that will influence the structure of the court in coming years will be within whose presidency Ginsburg and Breyer will choose to retire, and, possibly more importantly, during whose presidency will Justice Kennedy retire?

Justice Kennedy, being the swing vote on the court will tip the balance of the court in favor of whichever side has the presidency when he leaves the court. Kennedy for a few years now has been the deciding vote on most of the 5-4 rulings that come from the Supreme Court. When he leaves, it is unlikely that the 5-4 decision will go away, but it is far more likely that the majority will always be either five conservatives or five liberals only.

Since Reagan’s presidency, the court has shifted to the conservative side of the spectrum with some momentum, however, the coming presidential elections and when the justices choose to leave will be the telling signs of whether that trend will continue, reverse, or if the current status quo of the court will remain like it is.

[1] Ponnuru, Ramesh Empty Souter-Supreme Court Justice David Souter, National Review, September 11, 1995

[2] Liptak, Adam (June 30, 2010). “The Roberts Court Comes of Age”. The New York Times: p. A1.

[3] Mark Arsenault (Audust 5, 2010). “Senate confirms Kagan as 112th justice to Supreme Court”. The Boston Globe. Retrieved August 5, 2010.

[4] Staff writer. Ruth Bader Ginsburg. Undated. Accessed August 24, 2009.


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