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Wednesday, February 22, 2012


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"Weirdly enough, every justice on the Roberts Court except Thomas replaced an outgoing justice with whom he or she was generally aligned in ideological terms."

First of all, that's not entirely true. Alito replacing O'Connor moved the court significantly the right, as the fulcrum moved from O'Connor to Kennedy. One could also argue that Ginsburg moved the court to the left when she replaced White.

Second, it's not actually that weird. Over the past few decades, justices have made a conscious effort to wait until a president who was a partisan and/or ideological ally arrived in the White House before announcing their retirement. The exceptions came under George H.W. Bush, when two superannuated liberal justices (Brennan and Marshall) were unable to wait out GOP control of the White House after the Democrats lost three elections in a row. Liberals just got lucky that Souter turned out to not be as conservative as Bush thought he would be. Not only did that mean liberals gained an extra justice, it also meant that Souter retired under a Democratic administration rather than waiting for a Republican one.

And by the way, don't be at all surprised if, for that exact reason, the older conservative justices (Scalia and Kennedy) stubbornly hold on to their seats even if Obama's re-elected. It may take a third Democratic win in 2016 to really move the Court leftward.

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