Cascade (Part II).
Read the introduction and parameters to this thought experiment at Part I.
Baseline
To start, here is the current makeup of the SCOTUS.
Scenario 1
Time served is a factor. Justices who have served more than 10 years at the time term limits are enacted are respectfully compelled to retire immediately. All others will retire during the month that occurs 10 years after they first took office.
Roberts, Thomas, Ginsberg, Breyer, and Alito retire immediately at the top of 2019 and are replaced by a Republican president’s appointees. Through 2019, the conservative-liberal divide stands at 7-2. When Sotomayor retires in August 2019, she is replaced by a Republican appointee, shifting the balance to 8-1. When Kagan retires in August 2020 and is replaced by a Republican appointee, the SCOTUS stands in a conservative unanimity for the incoming administration.
If one is generous and assumes that a Democratic president wins the election in 2020, they will not receive an opportunity to appoint new Justices during their term. If they are fortunate enough to be re-elected in 2024, then during the 2025 – 2029 term they will be able to replace Gorsuch with a more liberal Justice, and might possibly also replace Kavanaugh right before their term ends. As this president leaves office the political balance of the Court would remain strongly conservative at 7-2.
Over the course of the immediately following presidential term, however, those seven Justices would be immediately compelled to retire. Should a Republican administration take office for the 2029 – 2033 term, this 7-2 conservative balance would be maintained; should a Democrat be elected, they gain the opportunity to dramatically swing SCOTUS to a liberal 9-0 unanimity. Even if a Republican had won the presidency in 2024, the opportunity for Democratic appointments between 2029 – 2033 still place SCOTUS at a 7-2 liberal majority.
In other words: In this scenario, the Court potentially begins to swing back and forth over the course of each decade, 7-2 liberal to 7-2 conservative, with variances only occurring in cases of unfinished SCOTUS terms. The Court’s ties to the presidency become an even greater part of its essence, and for as much as SCOTUS appointments have been a key strategic point in presidential elections generally, now they become especially dire towards the end of each calendar decade.
Next: A look at Scenario #2.
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