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Balance of aging Supreme Court hinges on next president

THE ASSOCIATED PRESS

July 13, 2008

WASHINGTON - John Paul Stevens still plays tennis at 88. Ruth Bader Ginsburg, 75, works out regularly in the Supreme Court gym.

The oldest two justices - half the court's liberal wing - top the list of those considered likely to retire during the next presidential administration. Despite Stevens' and Ginsburg's apparent vigor, change on the Supreme Court is more likely than not over the next four years.

"One would think that over the course of the next four years the actuarial tables would catch up with the oldest members, as they do for us all," said Pepperdine University law professor Douglas Kmiec.

With five justices 70 or older by the time the court meets again in October, its role in the presidential election has become a talking point among interest groups and commentators. A single change on a court that divides 5-4 in key cases can alter the results. But forecasts depend on three factors: Who wins the presidency, who leaves the court and who is appointed.

Democrat Barack Obama would likely replace liberal justices with like-minded successors. Republican John McCain could get the chance to fulfill a campaign pledge and put a conservative justice on the bench in the mold of Chief Justice John Roberts or Justice Samuel Alito.

Alito, one of President George W. Bush's two selections, repeatedly has demonstrated the difference one justice can make on a closely divided court. The result in disputes over abortion, religion and school desegregation almost certainly would have been different had Sandra Day O'Connor not retired in 2006.

"Given the likely retirements, the next election probably will determine whether the court gets more conservative or stays ideologically the same," said Erwin Chemerinsky, dean of the law school at University of California, Irvine.

The Supreme Court rarely is a big issue in a presidential campaign and this year - with $4-a-gallon gas, steep declines in the stock market and two wars - appears no exception.

The one case decided recently that could have elevated the court's importance in the campaign came out in favor of Americans' gun rights, placating the highly energized and politically effective gun rights groups.

Had the case "come out the other way, we'd be having a very different conversation," Thomas Goldstein, a Supreme Court watcher and advocate, said shortly after the decision.

The unpredictability of Supreme Court retirements is another reason the court rarely becomes an issue in presidential campaigns. Nine of the last 10 justices who retired or died in office were at least 75; six of those were 79 or older.

Goldstein predicts only Stevens will retire in the next four years, and not before he surpasses Oliver Wendell Holmes - who stepped down two months shy of his 91st birthday, in 1932 - to become the oldest sitting justice. That would happen in February 2011.

Goldstein's views shifted as he watched the court over the past year. He used to expect the retirement of three justices - Stevens, Ginsburg and David Souter. Though only 68, Souter has made no secret that he prefers New Hampshire to Washington.

But justices find it hard to leave the court unless they're in poor health, Goldstein said.

JOHN PAUL STEVENS

Associate Justice

BORN 1920 in Chicago

COURT HISTORY President Gerald Ford nominated him, and he took his seat Dec. 19, 1975.

PROFILE, IN BRIEF Although Stevens has wryly noted a preference for writing majority opinions, he has distinguished himself for writing more dissents than any of his colleagues on the court. Stevens has eschewed masking disagreement for the appearance of unity on the court. As he has explained, "I just feel I have an obligation to expose my views to the public."

RUTH BADER GINSBURG

Associate Justice

BORN 1933 in Brooklyn

COURT HISTORY President Bill Clinton nominated her and she took her seat Aug. 10, 1993.

PROFILE, IN BRIEF Much initial resistance to Ginsburg's nomination came from feminists because she had expressed reservations about the reasoning of Roe v. Wade upholding a woman's right to choose. Ginsburg would have preferred a more measured approach - an opinion that invited gradual liberalization of state abortion laws. At her confirmation hearings, however, Ginsburg characterized a woman's right to choose as "something central to a woman's life, to her dignity. ... And when government controls that decision for her, she's being treated as less than a full adult human being responsible for her own choices."

Sources: The Supreme Court Web site; The Encyclopedia of the Supreme Court of the United States; FindLaw profiles