That's why this graphic -- from Fix friend (and Republican lobbyist) Bruce Mehlman's latest PowerPoint breakdown of the 2016 election -- matters so much.
Four justices are 76 or older, including Ruth Bader Ginsburg (a.k.a. Notorious RBG) who is 82.
There has been considerable speculation -- and even some urging by Democrats -- that Ginsburg and Stephen Breyer, who is 76, should retire before Obama's term expires, a move that would allow him to appoint their replacements rather than wait until the uncertain outcome of the 2016 election.
That's not a new argument. Here's Randall Kennedy, a law professor at Harvard University, making the case for retirement way back in April 2011 in a New Republic piece:
Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire. That would be the responsible thing for them to do. Both have served with distinction on the Supreme Court for a substantial period of time; Ginsburg for almost 18 years, Breyer for 17. Both are unlikely to be able to outlast a two-term Republican presidential administration, should one supersede the Obama administration following the 2012 election.
Seth Masket, writing in the Pacific Standard in 2014, sounded a similar note:
In short, Ginsberg and Breyer are on the left of a sharply divided Court and they are not young. Ginsburg, in particular, is in her eighties, has already suffered through a cancer battle, and has experienced a range of injuries. What's more, the current partisan arrangement allowing Democrats to dominate the justice selection process may not last long. Democrats have around a 50 percent chance of holding the Senate this year, and probably roughly similar odds of holding the White House in 2016. Should the justices step down now, they could be replaced by people of similar ideological persuasions. Waiting longer holds out a real chance that they would be replaced by people well to the right of them, tipping the Court's precarious balance on such issues as abortion rights.
The older justices, for their part, are generally tight-lipped about their retirement plans. (They are, of course, tight-lipped about almost everything.)
“I’m concerned about doing the job full steam,” Ginsburg told MSNBC's Irin Carmon in February. “Once I sense that I am slipping, I will step down. This is a very intense job.” "I’ll know when I’m not hitting on all eight cylinders," Justice Antonin Scalia told New York magazine's Jennifer Senior in 2013.
Whether or not they talk about it, the law of averages would suggest that a few retirements at the court are coming some time soon. The average age at which justices retire from the Supreme Court is 78.7, according to a 2006 study by the Harvard Journal of Law and Public Policy. Ginsburg, Scalia and Anthony Kennedy are already past that average; Breyer will be by the time the next presidential term begins.
Looking at the most recent departures from the court provides a mixed bag. John Paul Stevens left in 2010 at age 90. David Souter retired in 2009 at 70. Sandra Day O'Conner stepped aside at 75.
While the court does much to promote the idea that it is entirely separate from politics and political concerns, there's some evidence that planning retirements based on the party affiliation of the president does happen. "I think certainly it’s natural and an appropriate thing to think about your successor," Stevens acknowledged in a 2014 interview.
Notice that I said "some evidence" in the paragraph above. Here's why: From 1953 to 2010, 46 percent of exiting Supreme Court justices left during a presidency that shared their partisanship, according to a 2011 study from the Quinnipiac Law Review. That means 54 percent didn't. (Math!)
In the more hyper-partisan political environment in which the court (and all of us) now reside, it's hard to imagine that the outcome of the 2016 election won't have some impact on the go/no-go decisions of the likes of Breyer, Kennedy, Scalia and Ginsburg. Given that, the stakes of the 2016 election are remarkably high. Who wins the White House will not only shape the country over the following four years but could well leave an impact on the court that stretches decades beyond that.