No matter which presidential candidate wins in November, he or she is likely to push the Supreme Court into uncharted ideological territory, according to a FiveThirtyEight model. Oliver Roeder, a senior writer for the site, explains why the balance of power among the nine philosopher kings is likely to swing dramatically to either the right or the left after 2016:
To look into the future of the court, I simulated 10,000 hypothetical future Supreme Courts (and their vacancies) under both a President Trump and a President Clinton, looking at what the ideology of the likely swing justice would be. (I used Martin-Quinn scores for justice ideology.) Specifically, I looked at the ideology of the court’s “median justice” in the scenarios, figuring that the person in the middle would be the person most likely to swing in tight cases. […]
If the simulation is accurate, the median justice during Trump’s or Clinton’s presidency could become one of the most extreme in almost a century.
In an election season where both candidates are so widely disliked and mistrusted, Democrats and Republicans (but especially the Republicans) have made the composition of the Supreme Court a key rallying point for their party faithful. Clinton is too soft for you, Sanders supporters? Well, good luck when your radical social legislation and economic regulations get reviewed by a hard-Right Supreme Court. And #NeverTrump Republicans: Are you really going to let Hillary Clinton appoint the replacement for Justice Antonin Scalia and tear his originalist philosophy to shreds?
But as I pointed out in a feature piece last month, focusing narrowly on which side will take control of the Court obscures a more disturbing question: Will the body be able to function at all if its median justice is not a moderate like Anthony Kennedy or Sandra Day O’Connor or Lewis Powell, but a solid partisan like Samuel Alito or Ruth Bader Ginsburg, whose decisions on hot-button issues predictably affirm the moral vision of one of the two sides in the culture wars? We don’t know for sure, because, as Scott Lemieux has documented—and as the FiveThirtyEight model shows—there is no precedent for such an arrangement in recent history.
There is ample cause for concern, however. The Court’s legitimacy has always depended on what I called (borrowing from the historian Edmund S. Morgan) a “fiction”—the idea that the view of the majority of the justices at any given time embodies a super-democratic consensus that transcends ordinary political preferences. This collective suspension of disbelief is essential to the Court’s functioning, and it has survived—if uneasily—in recent decades because the Court (thanks to its perpetually moderate median justice) has dispensed a share of major victories to liberals and conservatives alike.
This fragile arrangement is not built into the Court’s constitutional design, and it could well disappear under the next president. If the institution starts to resemble an unelected super-Senate, controlled for decades by one party or the other, the fiction that undergirds the justices’ awesome power will become difficult to sustain. The political class hasn’t yet fully appreciated the impact of the 2016 presidential election on the Supreme Court—not on whether it will lean left or lean right, but on whether it will retain enough legitimacy for its rulings to matter in the first place.