Supreme Consequences

One consequence of the Supreme Court’s decision on the Affordable Care Act has been to remind Americans that their vote in November, which many political scientists tell us will reflect nothing more than an up-or-down vote on how they feel about the economy, will probably have a lasting effect if only via the Court’s composition. Here’s how conservative legal beagle Clint Bolick puts it in today’s Wall Street Journal:

The court’s conservative majority so far has endured for 21 years, since Justice Clarence Thomas replaced Thurgood Marshall. Since then, there have been six appointments to the court. None, however, has affected the court’s balance, with two conservatives replacing conservatives and four liberals replacing liberals.

That may be about to change. Three justices—liberal Ruth Bader Ginsburg and conservatives Antonin Scalia and Justice Kennedy—will reach their 80s during the next presidential administration. So whoever wins in November likely will have the chance either to reinforce the conservative majority, or to alter the court’s balance for the first time in nearly a generation.

The stakes never have been higher…. [A]s human longevity increases, lifetime tenure has grown increasingly valuable. The average tenure of a Supreme Court justice today is 25 years—spanning more than six presidential terms. And presidents are catching on, naming ever-younger justices. If the newest justice, Elena Kagan, serves for all of her current life expectancy, she will remain on the court until 2045.

I don’t expect Obama or Romney to spend any time campaigning on this subject, which has always been an elite preoccupation (with the exception of the the anti-choice movement, whose grassroots activists are as focused on the judiciary as any law professor). But Bolick is right: it really does matter this time.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.