There’s light at the end of the long, gloomy tunnel of the DT Administration. Unfortunately, it’s an oncoming train.
While we’re fussing over distractions like the Russia investigation or Stormy Daniels, the lives and careers of the nine Supreme Court Justices are inevitably approaching their ends. The replacement of Scalia with Gorsuch left the court in a precarious balance, with the swing vote often being cast by Anthony Kennedy. But this balance would skew drastically to the right if any of the four liberal justices, or Kennedy himself, should die or retire while Republicans control both the White House and the Senate. There is no credible scenario under which the Republicans could lose the White House before January, 2021, and little chance that even a massive Blue Wave could give Democrats control of the Senate before 2020. Even if DT dies or resigns or is otherwise removed this window of vulnerability will remain open under Pence or whoever.
It’s reasonable to suppose that no member of the liberal group will willingly retire in a period of Republican control. Anthony Kennedy, however, might be willing to turn his seat over to a right-wing successor, and he is rumored to be considering retirement (although he did hire clerks for next year). And nobody can foresee the date of their death. What then is the demographic risk that one of the liberals, or Kennedy, will die in the next two years?
|Justice||Age||Probability||of Death (2 years)|
|Ruth Bader Ginsburg||85||16%|
|One or More of Them||39%|
Without even taking into account individual health histories, or the possibility of Kennedy’s voluntary retirement, there’s a substantial chance that the Republicans will be able to replace a liberal justice with a right-winger by 2020. If so, many 5-4 decisions in recent decades could be reversed, including same-sex marriage, although it’s also possible that Justice Roberts could refuse to overturn recent decisions based on the principle that cases should be decided on the basis of previously decided precedents (stare decisis).
Update April 29, 2018: Good News! Kennedy is staying on the court! How do I know? Because the New York Times Editorial Board asked him to.
Update June 27, 2018: Bad News! Kennedy is retiring after all. Because he says so.
Update as of December, 2018: Ruth Bader Ginsberg showed, “no sign of cancer” after the removal of two cancerous nodules from her lungs. The lungs filter metastasizing cancer cells from the blood, so there is definitely a tumor somewhere in her body that is the source of these nodules. If they had removed one nodule it would be possible to hope that this was the mother lode, i.e. that they “got it all out,” but with two nodules it seems to me to be just a matter of time before she is killed by the original cancer and/or its daughter colonies. If she dies or has to leave the court one day before the next Congress takes office, on January 3, 2021, or if she leaves office one day before DT does (one hopes), on January 20, 2021, and there is still a Republican majority (or tie, which would be broken by Pence) in the Senate, there will be a new, terrible Supreme Court appointee, and the barely-tolerable Roberts Court will become the unthinkably ghastly Kavanaugh/Gorsuch/Alioto/Thomas Court.