Shelby County is not unique in its 5-4 split. It is not unusual for the outcome of a case to depend on the decision of a single swing justice. Some of the most prominent cases since the turn of the century have been 5-4 decisions: Bush v. Gore, Citizens United v. FEC, NFIB v. Sebelius (Affordable Care Act). When the fate of such consequential cases can hinge on a single vote, the retirement and replacement of just one new justice could be huge.
The current SCOTUS bench is among the oldest since the New Deal. The average age of retirement for the past nine justices is 80.3 years old, and there are already several sitting justices who are approaching or past that age. It is the role of the president to appoint new Supreme Court justices, and because of the age of the current bench, he or she will almost surely be called upon to fulfill that duty. With several aging Supreme Court justices, the significance of the 2016 election—irrespective of the eventual nominees—is astronomical.
| Justice | Age | ||
|---|---|---|---|
| 2016 | 2020 | 2024 | |
| Ruth Bader Ginsburg | 83 | 87 | 91 |
| Antonin Scalia | 80 | 84 | 88 |
| Anthony Kennedy | 80 | 84 | 88 |
| Stephen Breyer | 78 | 82 | 86 |
The table above shows the ages of the four oldest justices at the next three elections. The justices’ ages in 2024 are included because incumbent presidents who run for reelection win two-thirds of the time, meaning that whoever is elected in 2016 has a good chance of remaining in office until 2025 if he or she chooses to run again.
Such an aged-bench would be extremely anomalous, as only four Supreme Court justices since its creation in 1789 have sat the bench at the age of 86 and the oldest sitting justice to date was 90. This means whoever is elected to be our next president will have a good chance of replacing at least a third of the current Supreme Court justices.
It is nothing new for a president to replace a justice (the last four presidents appointed two each); however this next term is unique in that there is the possibility of a very dramatic change in the balance of liberal and conservative justices. President Bush replaced two conservative justices with conservative justices, and President Obama replaced two liberal justices with liberal justices. In contrast, it is quite possible the new POTUS, regardless of his or her party, will be tasked with replacing a justice who is of the opposing ideology. Such an appointment would profoundly change the dynamics of the court and influence the trajectory of American jurisprudence for decades to come.
The oldest member of the Court and two-time cancer survivor Justice Ginsburg was a vocal advocate of preserving the VRA in its entirety in Shelby County. She wrote a scathing 37-page dissent where she famously compared the majority decision to effectually invalidate the preclearance requirement to “throwing away your umbrella in a rainstorm because you are not getting wet.” In contrast, Justice Scalia, the second oldest sitting justice, joined the majority opinion that gutted the VRA in finding the coverage formula unconstitutional. When just one vote made the difference between upholding the VRA and stripping it, which justice is retiring—and who is sitting in the oval office picking their replacement—is of great consequence.
In the wake of Shelby County, several states have passed or implemented laws that will make gaining access to the ballot box more difficult. As states push the boundaries and undo years of progress in making voting more accessible to everyone, it seems inevitable that another voting rights case will reach the Supreme Court’s docket. The only question is: who is going to be on the bench to hear it?
Emily Hoyle is a legal intern with Project Vote for the summer of 2015.