83 U. Chi. L. Rev. Online 1 (2016-2017)

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INTRODUCTION


  Presidential Politics and the 113th Justice
                           Amy  Howet


    They  appear  every four years: articles, op-eds, and blog posts
warning  readers  that control of the Supreme  Court (and, by im-
plication, the fate of the Republic) hinges on the upcoming presi-
dential election. The justices are getting older, the authors cau-
tion, and the next president could have the opportunity to appoint
one, two, three, or even four new justices to the Court.I
    To  be fair, these Cassandra-esque  warnings  did, at least to
some  extent, prove correct in the past. During  his two terms  in
office, President George W. Bush  nominated,  and the Senate con-
firmed, two new  justices: Chief Justice John Roberts and Justice
Samuel  Alito. The same  is true for President Barack Obama, who
nominated   Justices Sonia Sotomayor   and Elena  Kagan.  But the
ideological makeup  of the Court remained  more  or less the same,
because  each justice who  left the Court was  replaced by a new
justice with a similar, if not identical, approach to the law.2
    Going  into the 2016 presidential elections, it seemed as if this
might  actually be  the year in which   winning  the race  for the
White  House  might  also lead to victory in the battle for the Su-
preme  Court. Justice Ruth Bader  Ginsburg-who has spurned re-
peated  calls for her to resign to allow Obama to appoint her suc-
cessor-turned   eighty-three  this year. Justices Antonin  Scalia
and  Anthony  Kennedy   would  both be octogenarians  by the time

   t  Editor and reporter, SCOTUSblog. Thanks are due to Lisa McElroy for inviting
me to participate in this symposium, and to the staff of The University of Chicago Law
Review for their careful and excellent editing. All errors are, of course, mine.
   I  See, for example, Geoffrey R. Stone, The Supreme Court and the 2012 Election
(HuffPost Politics, Aug 13, 2012), archived at http://perma.cc/7KE8-Z67Y; Steven G.
Calabresi and John 0. McGinnis, McCain and the Supreme Court (Wall St J, Feb 4, 2008),
online at http://www.wsj.com/articles/SB120209536777639949 (visited June 11, 2016)
(Perma archive unavailable); Bill Mears, Election Could Tip Balance of Supreme Court
(CNN.com, Oct 21, 2004), archived at http://perma.cc/7FHY-WV3L.
   2  To be sure, Alito has proven to be a more conservative justice than Justice Sandra
Day O'Connor, whom he replaced, and the substitution of Alito for O'Connor shifted the
Court slightly to the right. But the Court likely would have shifted much more to the left
if O'Connor had retired and President Al Gore had nominated her successor.


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