President Obama's Supreme Court Legacy

Stephen Bloom | Author, The Believer's Guide to Legal Issues | Monday, November 10, 2008

President Obama's Supreme Court Legacy

November 10, 2008

It’s no exaggeration to say that the lives, liberty, and property of Americans (especially the lives of millions of unborn Americans) rest in the hands of the nine Justices of our Supreme Court. With stakes so high, will the election of Barack Obama bring sweeping change to the delicate balance of power on the nation’s top court? Will the rise of President Obama inevitably usher in a new Liberal majority of Supreme Court Justices?

With so many hot issues coming to a head, will our high court soon be dominated by a new wave of Obama-appointed pro-abortion, pro-union, pro-gay-agenda, pro-affirmative-action, pro-redistribution-of-wealth judicial activists? Will gun rights, private property rights, religious speech rights, and other cherished Constitutional freedoms be swept away in an overwhelming tide of new Supreme Court Justices arrogantly legislating secularist intolerance from the bench? As our new president, can Barack Obama fundamentally change the direction of the Supreme Court?

Surprisingly, the answer may be “No he can’t!”

To find out why not, let’s take a quick look at the current make-up of the Court. As things stand, the nine Justices are precariously divided: four liberals leaning to the left on most issues, four conservatives leaning to the right on most issues, and one “swing vote” oscillating between the two factions. So, on the surface, it wouldn’t take much to tip the scales. Maybe even just one new appointment would do the trick for President Obama. But this is where it gets interesting.

Supreme Court Justices are appointed for life, and they typically remain at their posts until infirmities of old age drastically interfere with their abilities. In our history, we’ve had Justices who stayed on the Court through strokes, blindness, cancer and a host of other grave maladies. In other words, barring unforeseen tragedy or accident, we can safely assume that few of the current Justices will voluntarily retire during the next four (or even eight) years. Chances are, there simply won’t be many Supreme Court vacancies for President Obama to fill.

And an inside view of the demographics of the Court reveals that the two most likely vacancies are seats held by two of the most liberal Justices: Associate Justice John Paul Stevens, who is 88 years old, and Associate Justice Ruth Bader Ginsburg, who is 75 years old. Stevens is said to be spry for an octogenarian, but Ginsburg is known to have experienced some severe health problems. Over the last eight years, both have doggedly remained on the bench in the apparent hope that President Bush would be replaced by a Democrat. So, if widespread speculation is accurate, Stevens and Ginsburg will be the initial retirees, making President Obama’s first two picks liberal-for-liberal replacements merely maintaining the existing balance on the Court.

The other two liberals are Associate Justice Stephen Breyer, age 70, and Associate Justice David Souter, age 69, both just slightly younger than the oldest conservative, Associate Justice Antonin Scalia, who is 72, and the swing vote, Associate Justice Anthony Kennedy, who is also 72. Of these four, persistent suggestions have emerged that the liberal Souter is the most eager to retire. Obviously, he would prefer to do so during a Democratic presidency. So if President Obama gets a third pick, it will likely once again be liberal-for-liberal, simply maintaining the status quo.

The remaining three members of the conservative block are practically youthful by comparison with their peers. Associate Justice Clarence Thomas is only 60, Associate Justice Samuel Alito is only 58, and Chief Justice John Roberts is only 53. Each would appear to have many years of active service ahead of him.

While President Barack Obama may hope to impose real change on the Supreme Court, the good news for conservatives is that he probably can’t. Make no mistake, the 2008 election represents a missed once-in-a-lifetime opportunity for a Republican President to have established a decisive generational realignment on the Supreme Court (because the three probable retiring liberal Justices could have been replaced with conservative strict constructionists, creating a 7-2 or even 8-1 pro-life, pro-family, pro-constitution scenario). And certainly, President Obama will have a major impact on the federal judiciary through his appointment of activist liberal Judges to the lower courts during his term in office. But, when all is said and done, it’s very likely that the Supreme Court at the conclusion of the Obama Administration will look almost exactly like the evenly split Supreme Court of today.

Stephen L. Bloom is a Christian lawyer serving clients throughout Pennsylvania. He wrote
The Believer's Guide to Legal Issues (Living Ink Books) and frequently speaks on Christianity and law. For information, visit his website

Article reprinted from Stephen Bloom's Good News Daily column titled "Good News on the Law." Visit Good News Daily's website at