President Obama’s Greatest Fear

We have long maintained that the most important effect of the 2012 presidential election will be the ability of the winner to appoint two or more Supreme Court justices. After the ruling on Obamacare, that issue became even more important. Chief Justice Roberts has proven himself to be unreliable as an originalist, and must be counterbalanced by more justices on the bench who view the Constitution as America’s guide.

The stakes are known to many and occupy the minds of many political thinkers, including the president himself. In a recent story on the president’s campaign, Glenn Thrush explains that the president fears a Romney victory would allow a 7-to-2 conservative Supreme Court within a few years.

And as Clint Bolick, author of Two-Fer: Electing a President and a Supreme Court, explains, the stakes have never been higher for the Supreme Court.

First, because as human longevity increases, lifetime tenure has grown increasingly valuable. The average tenure of a Supreme Court justice today is 25 years—spanning more than six presidential terms. And presidents are catching on, naming ever-younger justices. If the newest justice, Elena Kagan, serves for all of her current life expectancy, she will remain on the court until 2045.

Second, the science of nominating philosophically consistent justices has grown more precise. In the past, presidents from Abraham Lincoln to Franklin Roosevelt to Richard Nixon tried to pack the court with reliable fellow-thinkers, with decidedly mixed success. Dwight Eisenhower famously remarked that his two biggest mistakes both served on the Supreme Court (Earl Warren and William Brennan). John F. Kennedy appointed Byron White, who turned conservative toward the end of his tenure, and George H.W. Bush appointed David Souter, who was liberal from day one.

These days, however, justices are carefully chosen on the basis of long philosophical track records. Indeed, most Supreme Court justices today remain more true to their principles than the presidents who appoint them.

Americans who believe that the Founding Fathers meant what they wrote in the Constitution cannot allow President Obama to appoint another two justices to the Supreme Court.