Five to Four

The New Yorker: by Jeffrey Toobin

When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. Presidents pick justices to extend their legacies; by this standard, Bush chose wisely. The days when justices surprised the Presidents who appointed them are over—the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the Presidents who appointed them.

At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly.