The Common Law

Political pundits and talking heads seem to agree on at least one thing – this historic presidential election may be the most important in a generation. The election will define the American agenda from Main Street to Mecca and will set the country on a new course for addressing 21st century issues. Sen. Obama and Sen. McCain have focused the debate on the economic crisis, the wars in Iraq and Afghanistan, and a host of other domestic and foreign policy agenda items. But these issues, while extremely important and deserving of heated debate, have overwhelmed another significant issue for voters in this election – reshaping the U.S. Supreme Court.

Most constitutional scholars agree that a change in the court over the next four years is probable, with court watchers predicting that the next president could nominate anywhere from one to three new justices to the court. The anticipated departure of several of the justices can be attributed to several factors, including the advanced age of some of the justices (the average age on the court is 68, and six of the nine justices are older than 65). For example, many court watchers predict that neither Justice John Paul Stevens, 88, nor Justice Ruth Ginsberg, 75, both typically considered members of the court's liberal wing, will remain on the Supreme Court through the 2012 election.

The departure of even one justice on the Supreme Court could be enough to upset the delicate voting balance that has emerged in the court in recent years. The court will move further to the right if Sen. McCain wins the election. Alternatively, a vote for Sen. Obama would, depending on exactly which justice leaves the bench, make the court more liberal or at least maintain the status quo.

The economy and the war on terror have swamped the campaign landscape to such a degree that some voters are giving little, if any, serious consideration to how the next president will reshape the Supreme Court. The irony is that the reconfigured court will have the ability to affect our lives for decades after American military boots no longer tread on Middle Eastern soil and the economy has gone through more unexplainable peaks and valleys. The stakes for the Supreme Court are as great now as they have ever been, which makes it even more disappointing that not many people are talking about it.