Politics Professor Explains Supreme Court-Election Connection

With the election looming, esteemed Professor of Political Science Professor Gerard Fitzpatrick reminds us of one issue that should be on everyone’s minds:  The U.S. Supreme Court.

Whomever wins the election will likely have the power to change the Court, he says. “So much is at stake. And few are talking about this.”

No matter what your political views, your vote could shape the U.S. Supreme Court for decades to come, he says. The Court now is the second oldest, age-wise, in history. “A vacancy could dramatically change the court’s balance,” he points out. Pending retirements include Ruth Bader Ginsburg who is 79, but several other justices are in their 70s. Anywhere from one to four justices could retire during next four years, leaving vacancies to be nominated by the President.

supreme court justicesAs Fitzpatrick explains, the court now is evenly divided between those who are deemed moderate-liberal (Justices Sonia Sotomayor, Elana Kagan, Stephen Breyer and Ginsburg), and those whose opinions are labeled conservative (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel  Alito, with Anthony Kennedy as a sometime swing vote.)

If one retires, the balance could change. If Mitt Romney wins the election, the court would be more conservative, and also have a longer life expectancy. “What many do not realize is that Robert Bork, a 1987 nominee rejected by the Senate, is Romney’s chief judicial adviser,” Fitzpatrick notes.

Supreme Court justices are known for serving long terms. Justice Oliver Wendell Holmes served until age 90, so did Justice John Paul Stevens. The New York Times has reported that a 2006 study in the Harvard Journal of Law and Public Policy found that the average retirement age for justices was 78.7. Justice William Douglas, notes Fitzpatrick, served 36 years.

“The election could determine the court’s position on same sex marriage, the voting act and corporate contributions,” Fitzpatrick says. “Although the Senate confirms a nominee, a President in his first term is still dealing with a Democrat-controlled Senate. That could make a difference too.”

Fitzpatrick bemoans the general lack of awareness of the Supreme Court among students.  Informal surveys of students consistently have shown they do not know who is the Chief Justice (and some answer John Marshall who died in 1835).

The Supreme Court is not the only court to watch, Fitzpatrick adds. The President appoints judges in the lower federal district and appeals courts, which hear most of the cases. Barely 100 cases go to the Supreme Court.

The U.S. Supreme court is currently deliberating on an affirmative action case that could affect higher education. The case applies to Ursinus too, not just public institutions, under the 1964 Civil Rights Act, he notes.

As for the election results, Fitzpatrick sees the possibility of one candidate winning the popular vote and the other winning the Electoral College.

Fitzpatrick, who received his Ph. D. from the University of Virginia, has written many journal articles on the political process, and on campaigns and the courts.