Whoever wins next week’s presidential election may shape the Supreme Court for the next generation of Americans, highlighting how important Tuesday’s election is to the high court’s future constitutional integrity.
Justices Antonin Scalia and Anthony Kennedy — both of whom were appointed by President Ronald Reagan — and Justice Ruth Bader Ginsburg — a Clinton appointee — will all turn 80 before 2016. Ginsberg is 79 while Scalia and Kennedy are 76.
Even if the justices do not retire, they may vacate the bench via natural causes: “life expectancy at birth in the United States is now 76.3 years for males and 81.1 years for females,” but “a male who had already reached the age of 75 in 2011 has a life expectancy of another 11.0 years,” while a female “who had reached 75 had a life expectancy of another 12.9 years.”
Many of the most important cases brought before the Court have been decided by a 5-4 majority; future justices’ proclivity towards judicial activism or restraint will likely determine the outcome of cases dealing with national security, racial preferences, same-sex marriage, abortion, and privacy laws.
For instance, Kennedy has voted with the majority in contentious 5-4 cases that upheld the ban on partial-birth abortions (Gonzalez v. Carhart), school choice voucher programs at Catholic schools in Ohio (Zelman v. Simmons-Harris), the right of individuals to own handguns in Washington, D.C. (District of Columbia v. Heller), and political spending’s protection as speech under the First Amendment (F.E.C. v. Citizens United).
He will likely be the swing vote in upcoming cases concerning issues ranging from affirmative action to same-sex marriage.
Ginsburg was part of the 5-4 majority in Grutter v. Bollinger, which upheld a limited form of a affirmative action. She was also part of the 5-4 majority in McCreary County v. ACLU, a case that determined “counties in Kentucky could not display the Ten Commandments in court houses and public schools because it violated the First Amendment prohibition on Congress passing laws ‘respecting an establishment of religion.'”
In two cases conservatives feel may be among the worst decisions in the Court’s history, Kennedy and Ginsburg were on the same side in one and on opposite sides in the other.
In 2005, in Kelo v. City of New London, Kennedy and Ginsburg voted with the majority in a 5-4 decision that upheld that the government, by using the powers of “eminent domain,” could confiscate private property from one of its citizens. The Court found that the city could give the land to a private company to use in a manner that would increase the city’s tax revenue as defined by the concept of “public use” in the Takings Clause of the Fifth Amendment. Many conservatives believe this decision was unconscionable and one of the worst in the history of the Court.
This past year, in NFIB v. Sebelius, Ginsburg voted with the four other justices in a majority decision that deemed the individual mandate in Obamacare constitutional under Congress’ taxing power, while Kennedy sided with the minority.