Obama Will Leave Deeper Mark on Top Court

Ruth Bader Ginsburg and Stephen Breyer May Hope To Leave

Help Wanted? President Obama greets Supreme Court Justice Ruth Bader Ginsburg. Will the ailing judge resign now that Obama has won reelection?
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Help Wanted? President Obama greets Supreme Court Justice Ruth Bader Ginsburg. Will the ailing judge resign now that Obama has won reelection?

By Reuters

Published November 08, 2012.
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President Barack Obama’s election victory on Tuesday may give him the opportunity to deepen his liberal imprint on the U.S. Supreme Court.

A Harvard law graduate who taught constitutional law, Obama, a Democrat, named two liberals to the high court during his first four-year term.

With his re-election, the retirement of one or more justices in the next four years could preserve the present ideological balance or, more significantly, move the bench to the left.

The court’s nine justices are selected for life and their appointments can rank among a president’s most enduring legacies.

Four are in their 70s. Two - Ruth Bader Ginsburg, 79, and Stephen Breyer, 74 - are liberals. Two - Antonin Scalia and Anthony Kennedy, both 76 - are conservatives. The biggest shake-up would come if either of the last two stepped down.

A swing in the liberal direction could foster a new receptiveness to campaign finance regulation. The five-justice conservative majority, led by Chief Justice John Roberts, has ruled against such regulation, most notably in the 2010 Citizens United v. Federal Election Commission dispute.

The chance of more muscle on the left in the future could influence conservative justices today, tempting them to be more forceful or, alternatively, more willing to compromise with liberals.

“I would bet on the shoot-the-moon option,” said Harvard law professor Mark Tushnet, predicting that conservatives would be more aggressive knowing their chances to prevail could diminish if Obama made new appointments.

Washington lawyer Michael Carvin, who argues regularly before the court, including last term against the Obama healthcare law, said the possibility of a leftward shift was unlikely to affect conservatives’ votes but could prompt them to seek to resolve hot-button cases sooner rather than later.


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