America's Supreme Court

Goodbye to that tie

Another chance for Barack Obama to shape the Supreme Court

ONE of the most effective ways for a president to put his mark on the future is to nominate judges to the Supreme Court. Because the nine justices are entitled to serve for life, and because something about life on the court appears to promote longevity, such opportunities are rare. Barack Obama got a first chance early in his presidency. Last summer he appointed Sonia Sotomayor, the court’s first Latina judge. Now he will get a second chance. John Paul Stevens, the present court’s longest-serving justice, turns 90 on April 20th. On April 9th he announced he would retire in the summer.

Mr Stevens is still vigorous and mentally alert. He spends a lot of his spare time swimming and playing tennis in Florida. He says that after more than 34 years on the bench he still loves the “wonderful job”. But since the Supreme Court is the final interpreter of the constitution, appointments are fiercely political. Mr Stevens's retirement gives Mr Obama a chance to replace him with another liberal.

Presidents cannot always be sure that the judges they nominate will perform as expected. Mr Stevens was the only Supreme Court justice to be appointed by Gerald Ford, a Republican president, and at a time when the young judge thought of himself as a Republican too. He told the New York Times recently that his judicial philosophy was conservative, in that he believes that the job of the court is to decide cases and resolve controversies, not write “broad rules” about society’s questions. But he is now generally held to be the leader of the court’s four liberal judges, the other three being Ms Sotomayor, Stephen Breyer and Ruth Bader Ginsburg. John Roberts, the chief justice, is a conservative, as are Antonin Scalia, Samuel Alito and Clarence Thomas. Anthony Kennedy, though conservative on most issues, is the court’s swing voter.

This delicate imbalance of power in favour of the conservatives is not something Mr Obama will be able to change when Mr Stevens retires, no matter how much he would like to. The president’s relations with Chief Justice Roberts are fraught. In January’s state-of-the-union message in front of Congress, Mr Obama criticised the court’s decision the previous week to overturn swathes of campaign-finance law and allow corporations and other organisations to spend as much as they liked on political advertising at election time. After that speech, Mr Roberts complained that the state-of-the-union message had become a “political pep rally”. And another thumping collision between the administration and the court could be on the way. Some Republicans question the constitutionality of the requirement in Mr Obama’s new health law for every citizen to buy insurance on pain of a fine.

When Mr Stevens goes, the most Mr Obama can hope to do is to keep the court’s balance as it is by replacing one liberal with another. But even this might not prevent a slight shift to the conservatives. The new judge would certainly lack Mr Stevens’s experience. Nor is the timing of his departure altogether ideal. Hearings before the mid-terms would, it is true, allow the Senate to vote when the Democrats can still generally rely on mustering a simple majority. But they would need 60 votes to overcome a filibuster, and an election year gives the Republicans an extra incentive to use the hearings to score political points. For example Goodwin Liu, whom Mr Obama has nominated to a lower court, has run into trouble with critics who accuse him of withholding information about his liberal beliefs. Senator Arlen Specter, a Pennsylvania Democrat, had urged Mr Stevens to wait.

As for replacements for Mr Stevens, several possible names are being discussed. Most of them were considered last year before Mr Obama settled on Ms Sotomayor. For the moment Elena Kagan, the solicitor-general and a former dean of Harvard Law School, appears at the top of this list. But choosing a candidate in the shadow of an election will be tricky. Another liberal in the mould of Ms Sotomayor might fire up Mr Obama’s loyal base. It could also be the perfect way to alienate those all-important independent voters.