For those envisioning a line of moving vans at the Supreme Court and a new president immediately reordering life at the marble palace, this small splash of cold water:
Justice Ruth Bader Ginsburg, 83, has already hired the four clerks who will assist her through June 2018.
Above the Law, the legal website that follows the anointing of Supreme Court clerks pretty much the way Variety chronicles casting the latest Steven Spielberg film, reports that several justices, including Ginsburg, have finished the hiring process for the term that begins in October 2017.
That doesn’t mean that nothing will change between now and then, or that the next president won’t have a dramatic impact on the high court.
But as refreshing as it is to see the Supreme Court at the center of the presidential campaign, it is worth remembering that a president’s chance to nominate a justice is one of the least predictable events in American politics.
“Generally, it is God who decides whether presidents get Supreme Court appointments,” says longtime Supreme Court practitioner Walter Dellinger.
It is natural to look at Ginsburg; Justice Anthony M. Kennedy, 80; and Justice Stephen G. Breyer, 78, and conclude that whoever moves into the Oval Office next January has the chance to leave a lasting legacy. The partisan battle to fill the late Justice Antonin Scalia’s seat rages still, and President Obama’s choice of Merrick Garland awaits his fate.
The outcome will tilt the court to the left, or it could leave conservatives in control.
Republican Donald Trump has made that clear, as he’s trying to use the power to appoint justices as a way to try to bring reluctant conservatives in line.
“If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges,” he said at a July 28 rally in Cedar Rapids, Iowa. “Sorry, sorry, sorry — you have no choice.”
But those with lifetime appointments do have a choice, and there are plenty of reasons to think that neither Ginsburg — the court’s oldest member, and so the one most often in the will-she-go spotlight — nor anyone else is preparing to step down soon.
Ginsburg made it perfectly clear this summer what she thinks of Trump. If she “can’t imagine what this place would be . . . can’t imagine what the country would be” with Trump as president, as she told the New York Times, there is little reason to think she would be willing to let Trump choose her replacement.
And if Hillary Clinton is elected? Ginsburg would be in a position of power unlike any she has experienced in her more than two decades on the court.
She would be the senior justice among the five appointed by Democratic presidents, with a liberal majority that hasn’t existed on the Supreme Court for more than 40 years.
That is important for a reason. When conservative Chief Justice John G. Roberts Jr. is in the majority, he either writes the opinion of the court or decides who will. But if not, the prerogative falls to the senior justice on the prevailing side.
If the majority in a case is composed of only the five liberals, that would mean Ginsburg would either write the opinion or decide who gets the job.
As she pointed out in a public appearance this summer, that’s an opportunity that never before has been available to her. It would seem to be one she would not lightly give up by retiring.
Ginsburg and her fellow liberals have been successful in recent terms by sticking together on the issues they consider important and then drawing the needed fifth vote from one of the conservatives. It is almost always Kennedy.
But that means that Kennedy, who joined the court five years before Ginsburg, is in the position of having the decision reflect his views.
Ginsburg has acknowledged that the liberals sometimes would have done things differently had they not needed Kennedy’s vote. For instance, she would have found the constitutional right for gay couples to marry anchored in a different part of the Constitution than Kennedy did, one that would have been more expansive in protecting gay rights in other cases.
But the liberals signed onto Kennedy’s 2015 opinion in Obergefell v. Hodges without raising competing theories. “In this case, it was more powerful to have the same, single opinion,” Ginsburg explained later. She added that it takes discipline to say, “I’m not the queen, and if the majority is close enough to what I think . . . then I don’t have to have it exactly as I would have written it.”
This past term, Kennedy voted with the liberals to strike down Texas abortion-clinic restrictions as intrusive on a woman’s constitutional right to the procedure.
As the senior justice in the majority, Kennedy bypassed Ginsburg, the justice most identified with abortion rights, and assigned the opinion to Breyer. This time, Ginsburg wrote a separate concurrence, with a blunt message that future abortion restrictions by the states would have a hard time at the court.
Breyer’s opinion was comprehensive, painstaking — and long, Ginsburg told Duke University students this month. She wrote hers “so that the public and the press could get it all in a nutshell,” she said.
Some have interpreted that Ginsburg’s criticism of Trump — which broke all modern norms for a justice and which Ginsburg later said was “ill-advised” — was a sign that she has decided to leave the court soon if Clinton is elected.
But Ginsburg has given no indication of that, and she maintained a busy summer schedule of traveling to Europe and speaking across the country. No one is looking for Kennedy to leave, and Breyer has reason to hang on, as well: He would become the senior justice on the liberal side if he outlasts Ginsburg’s tenure.
Perhaps their role model will be Justice John Paul Stevens, who retired from the court in 2010, when he was 90. Stevens still gives speeches and is at work on another book. As a retired justice, he is allowed to hire one clerk.
He, too, has already made his choice for the term that begins in October 2017.