The Common Law: How The Next President Will Reshape the U.S. Supreme Court

And the lasting impact of this presidential election

The upcoming presidential election will define American agenda from Main Street to Manhattan for the next generation. Supporters of both Hillary Clinton and Donald Trump point to the economy, foreign policy, immigration, Obamacare, and a host of other domestic issues as the best barometer of the election. Others remain distracted by the unprecedented circus-like atmosphere that surrounds the entire election. But these issues, while important and deserving of discussion, have overshadowed what could ultimately be the most lasting legacy of the next president – reshaping the U.S. Supreme Court.

In theory, while we would like to think that each Justice is immune to political leanings, the Court's voting record suggests otherwise. Prior to Justice Scalia's death earlier this year, four justices consistently made up the Court's conservative wing (Scalia, Roberts, Thomas, and Alito), four justices consistently made up the Court's progressive wing (Ginsburg, Breyer, Sotomayor, and Kagan), and Justice Kennedy often served as the swing vote, particularly on social issues. The conservative justices (and Justice Kennedy) were all appointed by Republican presidents. The progressive justices were all appointed by Democratic presidents.

Court watchers predict that the next president could nominate as many as three or four new justices to the Court. Justice Scalia's seat remains unfilled, with President Obama's nomination of Chief Judge Merrick Garland blocked by Senate Republicans. Moreover, the average age of retirement for a Supreme Court Justice is 79 years old. Justice Ginsburg will be 83 when the next president takes office. Justice Kennedy and Justice Breyer, who will be 80 and 78 years old, respectively, when the next president takes office, may also consider retirement during the next presidential term.

The departure of even one Justice could be enough to upset the delicate balance of 5-4 votes that has developed within the Court's voting patterns over the last few years. Trump has released a list of approved judges that he would consider for nomination to the U.S. Supreme Court, all of whom would likely join the Court's conservative wing. Alternatively, a vote for Clinton, who has vowed to nominate progressive judges, would steer the Court in a liberal direction.

This election's "October surprises" have swamped the campaign landscape to such a degree that many voters are distracted from what might be the most lasting impact of this presidential election – 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 the next president leaves office. The stakes for the Supreme Court and the law are greater now than they have ever been.

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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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