But the election will certainly affect the court, though perhaps not right away.
And it appears that a President Romney has far more potential to influence the court than does President Obama.
The oldest justice, Ruth Bader Ginsburg, turns 80 in March, just past the average retirement age of 79 in recent decades.
Here are some possible variations on the state of play:
Say Obama wins reelection. The odds are he would replace Ginsburg and, maybe, Breyer. That would shore up the minority liberal quartet but not provide a fifth vote. The oldest conservatives would likely opt to stay on the court. (If either or both left, the court goes to a liberal majority.)
President Romney, however, would have tremendous opportunities. First, he replaces Ginsburg, which would add a sixth vote for conservatives — insurance against what some see as the “errant” jurisprudence of Chief Justice John Roberts’s vote on Obamacare — in future years. (Of course that decision removed the possible “out of control, unelected court” as a campaign issue had the justices struck down the health-care law.)
But Scalia and Kennedy would be more likely to retire during Romney’s presidency. If they did, that would ensure a dominant conservative 6-3 majority for many years. And if he were to win reelection and replace Breyer, then a muscular 7-2 conservative majority would rule the court for as far as the eye can see.
Democrats’ best chance for a liberal court majority would probably require Obama to win reelection and then Hillary Clinton to win in 2016.