The Common Law

How the next President will reshape the Supreme Court

The Presidential Election – Electing the Supreme Court With the election only a few days away, I have decided to focus on a forgotten (but essential) issue in the campaign --how the next president will reshape the Supreme Court.

Political pundits and talking heads alike seem to agree on at least one thing -- this is the most important presidential election of the last 20 years because it will define American agenda from Main Street to Mecca for the next generation. Supporters of both President Bush and Sen. Kerry point to Iraq, the economy, and a host of these domestic issues as the barometer for a new America. But these issues, while important and deserving of heated debate, have overwhelmed what could ultimately be the most lasting legacy of the next president -- reshaping the U.S. Supreme Court.

Most constitutional scholars agree that a change in the court over the next four years is highly probable, with some court watchers predicting that the next president could nominate as many as three new justices to the court. The anticipated departure of several of the justices can be attributed to several factors, including the advanced age of some of the justices (the average age on the court is 70, and eight of the nine justices are older than 65) and the heavy workload of the court. Throw in the fact that this current court has been intact since 1994, the longest period without a change since 1823, and all signs point to a changing of the guard.

The departure of even one justice on the Supreme Court could be enough to upset the delicate balance of 6-3 or 5-4 votes that has developed within the court's voting patterns over the last decade. Most court watchers believe that if President Bush wins the election, the court will become more conservative, with how much so depending on exactly which justice retires. Alternatively, a vote for Kerry would maintain the status quo of the court and could possibly make it more liberal.

National security and Iraq along with a handful of domestic issues have swamped the campaign landscape to such a degree that most voters are giving little, if any, serious consideration to how the next president will reshape the Supreme Court. The irony is that the reconfigured court will have the ability to affect our lives for decades after American troops leave Iraq and the economy has gone through several more unexplainable peeks and valleys. The stakes for the Supreme Court and the law are greater now than they have ever been -- which makes it even more disappointing that no one is talking about it.

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Marrs, Ellis & Hodge LLP,

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or

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