For all the talk about the danger of "one-party rule" in light of the Democratic 2008 sweep, it's easy to forget that the Supreme Court remains firmly in GOP hands and is likely to remain so throughout President Obama's tenure in the White House, even if he is re-elected in 2012. The best Obama may be able to do is keep the Court from moving even further to the right.
The members of the Court have life tenure and have often served into their 80's. Dating back to Reagan, the GOP has consciously followed a strategy of appointing young judges and justices to retain control of the bench for several generations. Today, the oldest GOP Supreme Court appointees, Scalia and Kennedy, are only 72, and they could easily still be on the Court after two Obama terms. The most recent retirements came at ages 76 (O'Connor), 81 (Rehnquist), 80 (Powell), 86 (Blackmun), 79 (Burger), and 83 (Marshall).
Although Nixon started the Court's move to the right from the Earl Warren court of the 60's, the Court retained a relatively moderate, centrist majority until George W. Bush appointed Chief Justice Roberts and Justice Alito, who have given the right a solid 5-4 majority:
By the time the Roberts court ended its first full term (in 2007), the picture was clear. This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.
In hindsight, a sad moment for liberals was Justice Thurgood Marshall's retirement in 1991, and his replacement by arch-conservative Clarence Thomas. Marshall ferevently hoped to stay on the Court long enough for a Democrat to appoint his successor, but he fell short by a year, and this has had drastic consequences.
Bill Clinton did make two good appointments during his eight years in office from 1992-2000, but his two picks, Breyer and Ginsburg, replaced the moderates White and Blackmun (a Republican who changed his stripes and authored Roe v. Wade and other progressive decisions), so the ideological balance of the Court did not change.
Until the Roberts and Alito appointments, the swing vote often was Sandra Day O'Connor, a Reagan appointee but a relative moderate. Since O'Connor's retirement, there have been four solid ultra-conservative votes (Roberts, Scalia, Alito, and Thomas), with Reagan-appointee Anthony Kennedy, who is well right of O'Connor, the sole hope for a "moderate" outcome in any case that breaks on traditional conservative-liberal lines (not all cases do).
At first, he looked to be a reliable conservative, voting regularly with then-Chief Justice William H. Rehnquist. But in 1992, he split with the conservatives and voted with O’Connor to uphold the right to abortion and to maintain the strict ban on school-sponsored prayers. Since then, many on the right have portrayed him as a traitor. Their ire grew in recent years when Kennedy voted to strike down the death penalty for defendants who are mentally retarded or younger than 18 at the time of the crime. He also wrote the court’s two major rulings in favor of gay rights. In one, he said gay and lesbian couples deserved respect and dignity, not condemnation by law. Scalia denounced his opinion as the first step toward same-sex marriage. Despite the fiery exchanges over social issues, Kennedy has some conservative views that could loom large in the years ahead. For example, he has voted regularly against affirmative action, arguing that the government should not rely on race in making decisions. In the fall, the court will consider a challenge to voluntary school integration programs, and Kennedy could create a majority for the conservative bloc.
Kennedy is 72, and the far-right bloc are aged 53, 58, 60, and 72. The Clinton appointees are now 70 and 75. Justice Souter (a moderate-liberal somehow appointed by the first Bush) is 69. Justice Stevens, a liberal appointed by Gerald Ford, is now 88 and, as other diarists have pointed out, progessives owe him a big "thank you" for staying on the Court and not allowing Bush to appoint his successor, which would have been crushing.
So what can we expect from Obama? It is always possible that a younger justice will resign or die, although certainly each of the four far-right justices will do everything possible to keep their seats until a Republican is back in the White House (particularly Thomas, whom Obama has expressly criticized). Presumably Kennedy also wants a Republican to take his seat. Going strictly by age, Obama will likely have the opportunity to replace Stevens, Breyer and Ginsburg, maybe even Souter. But, as with the Clinton appointments, anyone who replaces one of these four will only "hold the line" and keep the Court where it is now, leaning quite far to the right.
The chances for Obama to cause an ideological shift thus do not look good. The election of 2016, when the Court's conservatives will be approaching retirement age, could be the one that determines the Court's direction.