I am a liberal (and a supporter of the 'liberal' side of most issues) and a supporter of Senator Obama for a multitude of reasons. One of the paramount reasons is that I strongly prefer seeing upcoming vacancies on the Supreme Court of the United States filled by appointees of a President Obama rather than appointees of a President McCain. While the high court is not as old as it was at the beginning of President Bush's second term, it is still a fairly old court. After all, there have only been two vacancies in the last 14 years, whereas over the past half century there have been 19 vacancies: on average, one every 32 months.
As such, we can expect with near certainty that the next administration will appoint at least one Justice and very likely at least two. Further, an Obama victory is more likely than not to result in eight years of Democratic control of the Presidency, and over the next eight years there are likely to be four to six vacancies on the Supreme Court.
With this in mind, I'd like to have a look at vacancies on the USSC in recent history (I'm going to use the last half century as my definition of 'recent history') and the various aspects of those vacancies: the reasons for them, the ages of Justices at retirement and the ages of Justices at their deaths. I'm then going to look at the current Court and assess the likelihood of each of the various Justices vacating their seat over the next four and eight years, respectively.
To begin, let's have a look at recent vacancies on the United States Supreme Court.
SUPREME COURT VACANCIES OVER THE PAST 50 YEARS
Justice Sandra Day O'Connor, 2006 (age 75; still living)
Reason: retirement
Chief Justice William Rehnquist, 2005 (age 80; died in office)
Reason: death
Justice Harry Blackmun, 1994 (age 85; died in 1999, age 90)
Reason: retirement
Justice Byron White, 1993 (age 76; died 2002, age 84)
Reason: retirement
Justice Thurgood Marshall, 1991 (age 82; died in 1993, age 84)
Reason: health
Justice William Brennan, 1990 (age 84; died 1997, age 91)
Reason: health
Justice Lewis Powell, 1987 (age 79; died 1998, age 90)
Reason: retirement
Chief Justice Warren Burger, 1986 (age 79; died in 1995, age 87)
Reason: retirement
Justice Stewart Potter, 1981 (age 66; died 1985, age 70)
Reason: retirement
Justice William O. Douglas, 1975 (age 77; died 1980, age 81)
Reason: health
Justice John Marshall Harlan II, 1971 (age 72; died 1971, age 72)
Reason: health (died three months after retiring)
Justice Hugo Black, 1971 (age 85; died 1971, age 85)
Reason: health (died seven days after retiring)
Chief Justice Earl Warren, 1969 (age 78; died 1974, age 83)
Reason: retirement
Justice Abe Fortas, 1969 (age 58; died 1982, age 71)
Reason: resigned amidst impeachment proceedings
Justice Tom Clark, 1967 (age 67; died 1977, age 77)
Reason: resigned to avoid conflicts of interest when son Ramsey Clark became U.S. Attorney General
Justice Arthur Goldberg, 1965 (age 56; died 1990, age 81)
Reason: resigned to become Ambassador to the United Nations
Justice Felix Frankfurter, 1962 (age 79; died 1965, age 82)
Reason: health
Justice Charles Whittaker, 1962 (age 61, died 1973, age 72)
Reason: resigned to take a position with General Motors
Justice Harold Hitz Burton, 1958 (age 70; died 1964, age 76)
Reason: health
Note that in some cases I had to make a judgment call on whether or not health was the defining aspect of the Justice's decision to step down.
Age at Retirement
The average age of retiring Justices is 74; the median age is 77.
Longevity of Justices
The average Justice lived to be 80 years old; the median lifespan of Justices is 81.
Reasons for Retirement
*Varying health issues (including the death on the bench of Chief Justice Rehnquist) were the reasons behind eight vacancies
*Simple retirement was the reason behind seven vancacies
*Resigning to take other positions were the reasons behind two vacancies
*Political considerations were the reasons behind two vacancies
It is worth noting that retirements at fairly young ages tended to be for reasons other than health or retirement; of the five vacancies by Justices under the age of 70, four were for professional or political considerations.
Now let's consider each current Justice of the United States Supreme Court and how likely they are to vacate the court at some point before January 20, 2017. Note that no Justices will celebrate birthdays between now and Inauguration Day, so all ages currently listed will be the same when President Bush leaves office.
JUSTICE JOHN PAUL STEVENS -- AGE 88
Justice Stevens is a healthy and vigorous 88 years old, but he is still at that age when things can go downhill rapidly. I suspect that if McCain should win the Presidency, Stevens will give it a good go at waiting until 2013, and I think he'd have a decent shot at accomplishing just that. But if Senator Obama wins this race, Justice Stevens will almost certainly call it a career. It seems extremely unlikely that John Paul Stevens will serve through the next two Presidential terms.
Odds of vacating before January 20, 2013: 90%
Odds of vacating before January 20, 2017: 98%
JUSTICE RUTH BADER GINSBURG -- AGE 75
One of the liberal wing's stalwarts, Justice Ruth Bader Ginsburg is the second-oldest member of the Court. At 75 she is a nine-year survivor of colo-rectal cancer. While currently in good health, she has already reached the age at which half of Justices retire. One should not be surprised to see her retire in the first term of an Obama administration, though continued good health and a popular President Obama three years from now could well create a situation where she chooses to remain for another three or four years, confident that a Democrat will hold the Presidency during that time.
Odds of vacating before January 20, 2013: 65%
Odds of vacating before January 20, 2017: 85%
JUSTICE ANTONIN SCALIA -- AGE 72
In the next eight years Justice Antonin Scalia will pass the average and median ages of retiring Justices. However, if his temperment is any reflection on his constitution, Scalia may have well more than eight more years in him as a Justice. Personally, I tend to think that his contrarian nature indicates that he'll be serving as long as is reasonably possible even to the point where I suspect he doesn't concern himself with who might be in the Oval Office when and if he does comtemplate retirement.
Odds of vacating before January 20, 2013: 30%
Odds of vacating before January 20, 2017: 65%
JUSTICE ANTHONY KENNEDY -- AGE 72
Justice Kennedy currently occupies the position of the Court's swing vote, periodically enraging both the left and the right, depending on the decision. Like Scalia, he has now sat on the USSC for over two decades, and though he does not seem to intensely relish his position to the extent that Justice Scalia does, that impression may only be due to their comparative personalities. I suspect Kennedy is more likely to step down if another vacancy changes the makeup of the Supreme Court such that he is no longer the swing vote between equal-strength ideological blocs.
Odds of vacating before January 20, 2013: 35%
Odds of vacating before January 20, 2017: 70%
JUSTICE STEPHEN BREYER -- AGE 70
I believe Justice Breyer is of an age and health that gives him realistic hope of serving on a United States Supreme Court with a liberal majority, and for that reason I think he is more likely than not to remain on the court beyond the next two Presidential terms. Breyer may look forward to a day when he is in his late 70s, when Justices Stevens and Ginsburg and perhaps Souter have stepped down in favor of younger liberal Justices, and when Justice Kennedy and perhaps a conservative Justice have also been replaced with younger liberals. Justice Breyer would then sit as the elder Justice of the High Court's liberal majority.
Odds of vacating before January 20, 2013: 15%
Odds of vacating before January 20, 2017: 40%
JUSTICE DAVID SOUTER -- AGE 69
Though still shy of 70, Justice Souter is a likely candidate for an early retirement. He reportedly strongly considered it in the wake of the Bush v. Gore ruling, which he considers an absolutely travesty. Further, his love of his New Hampshire home is matched by his dislike of Washington, DC. I imagine he'd gut out a McCain Administration, not expecting the country to vote for a fourth consecutive GOP term as President, but if Obama is elected I think Justice Souter will step down as soon as convenient, though quite possibly allowing Stevens and perhaps Ginsburg to do so first.
Odds of vacating before January 20, 2013: 50%
Odds of vacating before January 20, 2017: 80%
JUSTICE CLARENCE THOMAS -- AGE 60
Justice Thomas' legal career has often been a bitter one and judging from recent publications he remains a bitter man. Though only 60, he's been on the USSC for almost 17 years, and promises to be on for many more. Even more so than Scalia, I think, Clarence Thomas is determined to soldier on through decade after coming decade. How his bitterness affects his aging remains to be seen. Perhaps he'll come to some terms with his situation and that will change his outlook; this could only help his health. But I foresee continuing years of silent defiance of his detractors as he sits on the High Court.
Odds of vacating before January 20, 2013: 15%
Odds of vacating before January 20, 2017: 30%
JUSTICE SAMUEL ALITO -- AGE 58
There's not much to speculate with the Court's newest Justice. At only 58 years of age and in fine health, Samuel Alito looks to be around for the foreseeable future, likely well beyond the next eight years.
Odds of vacating before January 20, 2013: 10%
Odds of vacating before January 20, 2017: 20%
CHIEF JUSTICE JOHN ROBERTS -- AGE 53
The Chief Justice is the youngest of them all. One would expect him to spend at least another dozen or 15 years on the Supreme Court. At this point he could retire at a relatively young age while still having made an impact as Chief Justice. On the other hand, 25 or 30 years down the road the USSC might still be the Roberts Court. At any rate, it would take something unforeseen to see him exiting the seen before 2017.
Odds of vacating before January 20, 2013: 5%
Odds of vacating before January 20, 2017: 10%
To simplify the analysis a bit, I'd like to break down the current Justices of the United States Supreme Court into four groups based on general similarities in alignment and likelihood of a vacating their seats between January 20, 2009 and January 20, 2017.
First, we have Justices Stevens, Ginsburg and Souter, three of the four Justices who comprise the present liberal wing of the court. These three individuals are, in my opinion, the next three Justices who will step down from the High Court. Of course, unexpected health issues in another Justice could alter such a progression. But the odds are good that should a have a President Obama until 2017 that all three of these Justices will no longer be serving. While their replacements will not represent anything more than a minor substantive gain, they will represent a gain in potential, as they will be younger and bound to serve for decades.
The next group is Justices Scalia and Kennedy. Both of these men will turn 80 in 2016. I think the odds are about 50-50 that one or the other is gone from the court by that time. Should this not occur, it seems somewhat more likely that both will be gone by then than that both will remain on the USSC.
The next group is a solo project: Justice Breyer. Health permitting, and there is no apparent reason it won't permit, I expect Breyer to remain past Inauguration Day in 2017, especially considering that he will quite possibly be looking to be the senior Justice of the USSC's new liberal bloc in 6 or 8 years time, which could just be a majority bloc.
Finally, we have three young conservatives: Chief Justice Roberts and Associate Justices Thomas and Alito. While none alone is likely to depart any time soon, the odds of one of the three vacating his seat in the next eight years approaches 50%.
So, to sum up my projections, looking at an Obama Presidency from 2009 to 2017 we can expect to see liberal Justices Stevens, Ginsburg and Souter replaced, either conservative Justice Scalia or moderate-conservative Justice Kennedy replaced, and maybe one of three three youngest Justices, conservatives all, replaced. If this pans out, the most likely result would be have a new Supreme Court alignment of five or six liberal Justices as President Obama's successor takes office versus three or four conservatives, one of whom might be Justice Kennedy who may continue to be a rather unreliable conservative vote in decisions or may shift rightward when he no longer represents a swing vote.
I'd like to point out that while the low end of this result would be hardly overwhelming, those five liberals would be, on average, younger than the then-remaining four conservatives. And at that point, I'd be looking at the four year term beginning in 2017 to likely see three or four Justices replaced, either Scalia or Kennedy (or both, if they both remain at that point), Breyer, and perhaps one of the current younger conservatives. At this point, hoping for a Democrat to hold the White House for the next 12 years is a nice dream, but four and eight years are an eon and an eternity, respectively, in politics. Still, that would be a path to a solid and overwhelming liberal majority on the United States Supreme Court.
You will note that I have made the assumption that the Democrats will manage to nominate/confirm Justices who are actually liberal. I feel fairly safe in doing so, as the composition of the Senate looks extremely favorable through 2011 (due to an impending Democratic wave in the Senate this year), 2013 (due to an extremely favorable playing field in the 2010 mid-terms) and 2015 (due to the assumption of an incumbent President Obama riding an improved economy and a disengagement from Iraq to a second term, with his coattails largely mitigating what looks to be an otherwise very favorable playing field for Senate Republicans in 2012). So a prospective President Obama can expect to have a Senate which will readily confirm his choice of liberal Supreme Court nominees.
A final comment on Presidential presumptions in this article. Yes, I know that Senator Obama has not yet been elected and may lose. Still, things are breaking nicely in his favor, and it's hard to see bright spots for the McCain campaign at this point. Further, as dismal as things are right now it seems very likely that a President Obama in 2012 would be able to make a solid case to the average American voter that, yes, they are better off than they were four years prior. So the perspective of my projections do feature a two-term President Obama, and I think that is a more likely than unlikely eventuality. That said, I know there are no guarantees.