What Happens To Supreme Court In Obama's Second Term?

By NPR Staff

Published November 11, 2012 at 4:15 PM CST

Four of the current U.S. Supreme Court justices are over the age of 70, and many expect at least one appointment during Obama's second term.

There has been vigorous public debate this election cycle about the Supreme Court; from the Citizens United case to the Affordable Care Act.

As we look ahead to the next four years, it's not just Congress that will undergo change. Four of the nine Supreme Court justices are over the age of 70, meaning there's a real possibility for at least one new court appointment during President Obama's second term.

The two most likely justices, says NPR legal affairs correspondent Nina Totenberg, are liberal justices Ruth Bader Ginsburg, who is 79, and Stephen Breyer, who is 74.

"If they were replaced by somebody President Obama would pick, it would not change the ideological makeup of the court dramatically," Totenberg tells Guy Raz, host of weekends on All Things Considered.

If one of the two conservative justices over 70, Antonin Scalia and Anthony Kennedy, both 76, were to step down, however, you would likely see an intense battle over the appointment, Totenberg says.

"The court is split on so many issues 5-4, currently with the conservatives dominating," she says.

So who might be on Obama's short list for an appointment? Totenberg says if Ginsburg steps down, she doesn't see the president appointing a male to replace her; this would put the court back to a male-to-female balance of 7-2.

One woman mentioned often, Totenberg says, is California Attorney General Kamala Harris. But Harris also has some political prospects, and possibly a gubernatorial run in her future.

Possibilities for male appointees are Paul Watford, on the Ninth Circuit Court of Appeals, and Sri Srinivasan, who was nominated to the D.C. Court of Appeals, but has yet to be confirmed.

Whether or not any of those justices will step down during Obama's second term no one can know for sure, and the lifetime position of a Supreme Court justice is not something given up lightly, Totenberg says.

"These people love this work ... it's who they are," she says. "So in some ways, they view it as stepping down from their life, and the president's desires often don't come first."