The Six Horsemen (of the Apocalypse)

Actuarially speaking, there are four justices on the Court that the next president might replace: Justice Ginsburg, Justice Breyer, Justice Scalia and Justice Kennedy. Ginsburg is the oldest at 81 (she’ll be 82 in March), followed by Kennedy and Scalia at 78 years of age; Breyer is 76. Progressives are alternately worried and hopeful about the next appointment(s?) cycle.  A number of liberals, perhaps most prominently Erwin Chemerinsky, called for Ginsburg to step down after OT 2013 in order to ensure that a Democratic president would appoint her successor; others, like Dahlia Lithwick, dismissed this notion.  Other progressives have discussed the possibilities of replacing either Justice Scalia or Justice Kennedy.  Mark Tushnet (writing without much political valence) penned an interesting post regarding what might be a feasible agenda for a liberal majority on the Court should a Democratic president replace Kennedy or Scalia (spoiler alert: keep your hopes in check).  The prolific op-ed writer Chemerinsky both frets and grins depending on which justice is replaced by a Democratic or Republican president (as constrained by the Senate’s composition).  And the Huffington Post seems fairly confident that Hillary Clinton will defeat the Republican nominee and subsequently usher in a liberal “era” for the Supreme Court.

Much of this well-worn ground.  But what never seems to be discussed is which scenario — a Democratic president replacing Scalia and/or Kennedy; a Republican president replacing Ginsburg and/or Breyer — is better informed by political science. And if you were wondering: as of right now, the news from political scientists provides little ballast for liberals’ hopes.  As reported in National Journal, Alan Abramowitz’s “Time for Change” model currently has Clinton — stipulate for present purposes that she will be the Democratic nominee — winning 48.7 percent of the vote.  Even worse for those who fear six conservative votes on the Court (even if it’s only for a few years depending on who retires when), Abramowitz’s model, in order to push Clinton past 50 percent, would require President Obama achieving higher levels of popularity and a roughly 45 percent increase in GDP: from 2.4 percent growth to 3.5 percent.  (N.b., Abramowitz’s model utilizes only three variables, but he has picked the popular vote winner in each election since 1988).  The bad news doesn’t stop there: the most moderate of the plausible GOP nominees, Jeb Bush (again, based on political science data, and, no, I am not including Chris Christie as a plausible nominee), will still nominate to the Court someone in the vein of Chief Justice Roberts.

On the proverbial other hand, it is not wholly implausible that the “fundamentals” will change in the interim such that Clinton becomes the favorite.  What is more, the sample size for elections following a two-term president since 1856 — and this is to say nothing of what scholars deem the modern-era of the presidency (post World War II) — is small and the evidence mixed.* Finally, this may all be a moot point.  It would not be unreasonable to posit that all four of the aged justices will simply serve through 2020; we know, for example, that Ginsburg is not too old to imbibe before the State of the Union bedtime be damned.

Whatever may happen, including what is as of now (more) likely to happen, it is safe to say that “The “Constitution in 2020” may look quite different than some legal academics had imagined, which is to say: worse.

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*However, Ambramowitz’s model’s current expectation of a Republican presidential victory in 2016 is consonant with what we know from American Political Development and regime politics scholars.  Julia Azari, for example, has persuasively argued that Obama fits well within the “preemptive presidency” stance — that is, “a politician who comes to power while the dominant ideas still mostly emanate from the other party.” Jack Balkin is a little more confident: he argues that the New Right regime is on the way out, but that we might be experiencing a (slow) regime change sans a reconstructive president.  (This is based on Stephen Skowronek’s important work on “political time”).

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