Whether one identifies as Democrat or Republican, liberal or conservative, there is no issue more important in the coming election than who will fill the vacancies that are sure to exist on the Supreme Court in the next several years. That’s especially true if the next president serves two terms, because he or she is likely to have several appointments to the Supreme Court.
Since 1960, the average age at which a justice has left the bench is 78 years old. Justice Antonin Scalia was 79 when he died last February. When the next president is inaugurated, there will be three justices 78 or older: Ruth Bader Ginsburg (who turned 83 on March 16), Anthony Kennedy (who turned 80 on July 23), and Stephen Breyer (who turned 78 on August 15). Also, of course, there is Justice Scalia’s seat, which still may be left for the next president to fill.
Since 1971, when Richard Nixon’s third and fourth nominees for the Supreme Court were confirmed, there have been five, and sometimes as many as seven, justices on the court who were appointed by Republican presidents. For 45 years, when the court has been ideologically divided, more often than not it has decided in a conservative direction. But now, there are four justices appointed by Democratic presidents and four appointed by Republicans.
Literally every issue concerning our constitutional rights will turn on who replaces these justices. Consider five issues that almost surely will depend on who wins the presidency.
Chemerinsky: What will the presidential election mean for SCOTUS?