Obama and the Supreme Court

Supreme Court

The theme of “change” dominated the successful campaign of President-Elect Barack Obama.

But according to two Penn experts, there is at least one facet of government that Obama might have some trouble changing: The Supreme Court.

Kermit Roosevelt, a Penn Law professor and expert in constitutional law, and Rogers Smith, chair of the Penn Program on Democracy, Citizenship and Constitutionalism, say it’s unlikely that Obama will have much opportunity to enact change on the Court. And they add that even if Obama gets the chance to appoint two or more judges, the realities of politics in the current economic climate may sway Obama from pushing too hard for a new liberal justice.

“The most likely result, I think, is that there will be one or maybe two vacancies [during Obama’s term], but they’re going to come from the liberal side of the court,” Roosevelt says. “And they would then be replaced by younger liberal justices, which would simply maintain the status quo.”

“We just don’t know how much opportunity he’s going to have,” adds Smith.

Justice John Paul Stevens is 88 years old and the most likely of all the justices to retire first. He is joined in the liberal wing of the court by Justice David Souter, Justice Stephen Breyer and Justice Ruth Bader Ginsburg, who appears to be the second-most likely justice to step down during Obama’s first term. The liberals are balanced by four conservatives—Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas and Justice Samuel Alito. The Court’s “swing vote” is held by Justice Anthony Kennedy, who is generally conservative but sometimes sides with the liberals on social issues.

Neither Kennedy nor any of the conservatives are expected to retire anytime soon, Roosevelt says. And even were something unexpected to happen, he says he would not expect Obama to nominate a strident liberal. “He might end up deciding, given all of the problems we face, that he doesn’t want to do anything that will make it harder to work with Republicans,” Roosevelt says.

Smith generally agrees, but notes there could be one scenario by which Obama might be forced to push the court to the left. As FDR learned when he took office in 1933, a conservative court can make life difficult for a president hoping to enact sweeping reforms. “There is the potential, I think, for the Court to come into dramatic conflict with the Obama administration if it attempts to respond to the economic crisis in the same [way as FDR did]. ... Obama might want to head that off.”

Were he to do so, both Roosevelt and Smith agree that Obama would likely choose one of two liberal candidates: Laurence Tribe, professor of constitutional law at Harvard Law School, or Cass R. Sunstein, a longtime professor of law at the University of Chicago who has recently joined Tribe at Harvard.

As for Sen. Hillary Clinton?

“The thing about the Court is that it’s a pretty isolated world,” Roosevelt says. “In some ways, the Court has to wait for things to come to it. Hillary probably would not want that.”

Originally published Nov. 13, 2008

Originally published on November 13, 2008