On the campaign trail last week, Sen. Marco Rubio (R-Fla.) turned his attention to the U.S. Supreme Court, which he sees, correctly, as one of the key issues in the 2016 presidential race.
“We apparently have five justices on the Supreme Court today that have forgotten the proper role of the Supreme Court. They view themselves as Super Legislators - basically the supervisors of the republic. They invent rights, they, they find and are basically writing law. The job of the Supreme Court is not to create law, it’s to interpret the Constitution as originally constructed and applied.“The next president of the United States must nominate Supreme Court justices that believe in the original intent of the Constitution and apply that. We need more Scalias and less Sotomayors.”
Looking past some of the grammatical errors, Rubio’s ideological case is dubious. For example, Justice Antonin Scalia has become an alarming laughingstock, and the idea of filling the high court with more justices cut from the same cloth is rather terrifying.
For that matter, it’s kind of amusing to hear a Republican senator condemn the idea of justices playing the role of policymakers – GOP officials on Capitol Hill have made clear more than once they see hope to see conservative justices play the role of governing partners, advancing Republican priorities when Congress can’t.
That said, the focus on the court itself makes a lot of sense. Consider this chart:
As we discussed in May, if we assume that the current court does not change for the remainder of the Obama presidency – and really, no one can even say that for sure – three justices will be at least 80 by Inauguration Day 2017. Justice Ruth Bader Ginsburg will be 83. (In the chart, blue lines refer to justices appointed by Democratic presidents; red lines refer to justices appointed by Republican presidents.)
The significance of these statistics is important: as Bloomberg Politics reported a few months ago, “The average retirement age for a U.S. Supreme Court justice is 78.7, a 2006 study in the Harvard Journal of Law and Public Policy found.”
The day the next president takes office, three sitting justices will already be well past this average, while a fourth will be very close behind. (Justice Stephen Breyer will be 78.2 years old on the next Inauguration Day.)
Will President Obama’s successor demand ”more Scalias and less [sic] Sotomayors”?
In the meantime, new Gallup polling shows Democratic support for the Supreme Court soaring in the aftermath of the historic recent session, but I’d recommend caution – the next session is likely to turn the tables and make Republicans very happy. To appreciate why, consider recent pieces from Irin Carmon, Sean Trende, Josh Gerstein, and Brian Beutler.