Months before Supreme Court Justice Antonin Scalia’s sudden passing, Court watchers began presenting these four numbers as a sober warning:
Because Justices Ginsburg, Scalia, Kennedy and Breyer were all well over 75 when candidates began exploring 2016 presidential bids, it was safe to assume that the next president would be called upon to nominate at least one (if not two or more) Supreme Court justices. Scalia’s death has only increased the intensity of the political battle for control of the Court.
Would you go left or right?
The unexpected departure of the Court’s most vocal conservative suggests that whoever fills Scalia’s seat could shift its ideological weight to the left for the first time in decades. The Supreme Court of the United States (SCOTUS) is sharply split along ideological lines: Justices Ginsburg, Breyer, Sotomayor, and Kagan are the Court’s liberal voices; until Justice Scalia’s death, he and Justices Roberts, Alito and Thomas filled out the Court’s conservative wing.
Justice Kennedy—a Reagan appointee—falls somewhere right of center, making his vote the deciding factor in particularly contentious decisions. Though Kennedy has been known to drift to the left on important issues, such as upholding Affordable Care Act subsidies and legalizing same-sex marriage, most of his decisions are ideologically conservative. As a result, he has tended to reinforce the more powerful conservative wing of the Court.
The Supreme Court wields significant power as the final arbiter of the nation’s most important legal issues, and SCOTUS has worked hard to downplay its ideological divide—a divide that many believe undermines the Court’s credibility. Justices push back against the idea that they are political players and often issue unanimous decisions, but those decisions tend to be in cases where the outcome is less politically significant. When the Court issues a high number of 5-4 decisions in politically charged cases, as it has in recent years, the illusion that SCOTUS stands above politics disintegrates, damaging public perception of the Court.
The truth, however, is that the Court has been political since its inception—interpretation of the Constitution is a highly political endeavor; after all, ideological disagreement is what
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