So over the weekend, Rick Perry reminded Republicans of what's really at stake in this election:
"Something I want you all to think about is that the next president of the United States, whoever that individual may be, could choose up to three, maybe even four members of the Supreme Court," he said. "Now this isn't about who's going to be the president of the United States for just the next four years. This could be about individuals who have an impact on you, your children, and even our grandchildren. That's the weight of what this election is really about."
"That, I will suggest to you, is the real question we need to be asking ourselves," he continued. "What would those justices look like if, let's be theoretical here and say, if it were Hillary Clinton versus Rick Perry? And if that won't make you go work, if I do decide to get into the race, then I don't know what will."
Perry is absolutely right, and what everyone focuses on when this topic comes up is just how long in the tooth the current Court is; by next year's election day, three of the justices will be in their 80s and another will be 78. What's really important in the short to medium term isn't just that the next presidency will see multiple retirements, it's that the next presidency will likely see a shift in the Court's ideological balance.
That's because the aging justices come from both wings of the Court. For instance, the two oldest justices are Ruth Bader Ginsburg, who will be 87 when the next president finishes his or her first term, and Antonin Scalia, who will be 84. The next oldest is Anthony Kennedy, who will also be 84 by then. Imagine if all three were to retire some time in those four years. If the president were a Democrat, that would mean that the Court would wind up with a 6-3 liberal majority. If the president were a Republican, it would be a 6-3 conservative majority. Now for a real scare, add in Stephen Breyer (who will be 82 by the end of the next president's first term, and you could wind up with a 7-2 conservative majority.
Nothing is assured, of course, because you don't know how health, fatigue, or politics might keep any particular justice on the Court or make them leave. But the odds are quite high that the next president will be able to leave the Court with a strong majority leaning toward his or her ideology. That kind of shift hasn't happened in decades; the last time a retiring justice was replaced by someone appointed by a president from the other party was in 1991, when Clarence Thomas replaced Thurgood Marshall. Presidents Clinton, Bush, and Obama only got the chance to replace a justice they liked with another justice they liked, leaving the Court's balance unchanged. But that streak will probably be broken by the next president. And the results for the country will be at least as profound as anything else the president does.