There are few things a president can do that a successor cannot reverse. One president’s war is often followed by the next president’s withdrawal. One president’s new social program frequently gives way to a new president’s budget cuts.
The one exception to this cyclical dynamic is the appointment of Supreme Court justices, where the justices have life tenure. Each president leaves a permanent mark on the law and public policy.
This should be, and will be, a major topic of discussion in the current election. Voters should pay attention.
When the country is deeply divided on controversial policy issues, as it is today, the Supreme Court becomes the place where stalemated issues get resolved. This was true for efforts to expand social programs during the New Deal, to protect civil rights during the Cold War, and even to settle a contested election in 2000.
Today, the justices will play a central role in defining health care, marriage, privacy, affirmative action and other contested policy issues of our time. They will not do this with a single decision, but with a series of rulings and opinions that frame law and public discussion.
The current Supreme Court is populated with aging justices, four of whom are older than 75 and five of whom have served on the court for more than 20 years each. The oldest justices include two conservatives, Antonin Scalia (79) and Anthony Kennedy (79), and two liberals, Ruth Bader Ginsburg (82) and Stephen Breyer (77).
Following the pattern of the past three presidents, whoever wins the White House should have the opportunity to appoint at least two replacements for current justices who retire in the coming years. There is a good chance that at least one conservative and one liberal will retire, giving the new president the opportunity to rebalance the court by appointing two justices of the same political persuasion.
We all know that the modern confirmation process involves intensive scrutiny of a potential nominee’s background and persistent efforts to predict likely ruling preferences. Becoming a Supreme Court justice involves appealing to a president’s policy positions and then separating from them when questioned by senators from the other party. Public claims to objectivity and private biases go hand-in-hand.
But for all the scrutiny, the process remains unpredictable. Many justices — even those with extensive judicial experience — change their views when they join the Supreme Court. They have reached the zenith of their careers, they are expected to act as philosopher-kings, and they have life tenure. These conditions encourage self-reflection and independence as never before in a judge’s career.
Many past presidents were frustrated when the justices they appointed had a change of heart. President Dwight Eisenhower, for example, appointed former California governor Earl Warren as chief justice of the Supreme Court in 1953.
Eisenhower expected that Warren, a fellow Republican, would use the court’s rulings to restrain the federal government, reduce regulations, and broaden the free enterprise system. Warren shifted radically, becoming a proponent of active government, regulation of public behavior, and an expansive social welfare state, including major civil rights milestones.
Eisenhower famously lamented that appointing Warren to the Supreme Court was his “greatest mistake.” Eisenhower’s successors would make similar statements about their appointees. Most recently, Chief Justice John Roberts, appointed by President George W. Bush, infuriated fellow Republicans with his support for the legality of the Affordable Care Act.
This historical background is vital for voters because it shows how important and unpredictable presidential choices truly are for the Supreme Court. The next president will reshape our daily lives through his or her judicial appointments, but the president will not control specific rulings.
Voters should look for presidential candidates who will appoint Supreme Court justices committed to their core values of fairness and integrity. We cannot predict exactly what the new justices will do, but we can expect appointees to reflect the biases of their initial presidential patrons.
The Democrat or Republican who wins the White House in 2016 will create a new Supreme Court that furthers the general preferences of that presidential party. The stakes for the Supreme Court in this presidential election are especially high, and partisan.
Jeremi Suri holds the Mack Brown Distinguished Chair for Leadership in Global Affairs at The University of Texas at Austin. He is the author and editor of numerous books, including “Liberty’s Surest Guardian: American Nation-Building from the Founders to Obama.”
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