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Expert FAQ: What Romney’s Election Would Mean for the Supreme Court

Sept. 17, 2012
Personal Finance
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Research and analysis by NerdWallet’s Divya Raghavan and Susan Lyon.

The current Supreme Court is one of the oldest and most conservative since the 1930s.  If Mitt Romney were elected the next U.S. president, a lot could change when it comes to the Supreme Court’s judicial appointments and rulings.

“And I hope to appoint justices for the Supreme Court that will follow the law and the constitution. And it would be my preference that they reverse Roe v. Wade and therefore they return to the people and their elected representatives the decisions with regards to this important issue.”

–   Mitt Romney

How likely are such major changes really?

By the Numbers: The Oldest Supreme Court

Our country’s current Justices of the Supreme Court serve an average of 16 years each, and the average age of retirement is 78.7 years.  Judges in bold fall above one or both of these averages:

Justice Age Tenure Political Views
Ruth Bader Ginsberg 79 19 Liberal
Antonin Scalia 76 25 Conservative
Anthony Kennedy 76 24 Conservative
Stephen Breyer 74 18 Liberal
Clarence Thomas 64 20 Conservative
Samuel Alito 62 6 Conservative
Sonia Sotomayor 58 3 Liberal
John Roberts 57 6 Conservative
Elena Kagan 52 2 Liberal

(Sources: and FiveThirtyEight Blog.)

Four justices are within five years of the average retirement age for a Supreme Court justice, and five justices are well above the average tenure.  It is likely that at least one justice will retire over the next four years, and as the current compositions of the Court is 4-4-1, appointments in the next four years could cause a dramatic shift in the Court.

Although the justices do not technically vote among party lines—they are guided by the Constitution and other neutral principles—their votes often divide according to ideological differences.  Additionally, Mitt Romney has declared he thinks the Supreme Court should reverse the Roe v. Wade decision and appeal Obama’s healthcare law.

Roe v. Wade v. Romney: Would Romney Overturn Abortion and Healthcare Laws?

The short answer: even if he wanted to, probably not.  A reversal of landmark policies such as Roe v. Wade, or even the recent Affordable Care Act (“ObamaCare”), would be possible but highly unlikely within the next four years even if Romney were to be elected.  But Romney’s statistical chances of winning are slim, as calculated by NerdWallet’s Statistical Election Tracker.

That said, a Romney administration would certainly see pressure to overturn key historic rulings.  The Roe v. Wade decision held that:

“State criminal abortion laws…that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term.”

So the decision was not that abortion is constitutional, but that state laws banning abortions are unconstitutional.  As a result, overturning the landmark 1973 Supreme Court case would not ban abortion; rather, it would allow individual states to decide their own laws on abortion.  Before the Roe v. Wade decision in 1973, women who lived in states that banned abortions would travel to New York, California and other liberal states to get the procedure; it is likely that a reversal of Roe v. Wade would lead to a similar situation.

Expert Opinions: If Romney is elected, what Supreme Court changes should we be on the lookout for?

We ask the experts what they think the big changes to watch out for would be, were Mitt Romney to take the White House.

  • Professor Edward Fallone, Associate Professor at Marquette Law School, argues that if Romney gets elected and really wants to get things done, he’d have to start with the fiscal policies and put the hot button social issues on the backburner in his first year:

“If Romney were to win, we’d want to look at both the policy front as well as the judicial appointments possibilities.  Per the policy, I’m one of the people who don’t believe his rhetoric.  On the policy front, I think he would play it like Ronald Reagan: pound the podium when it comes to hot button social issues like healthcare and abortion, but put those on the backburner while focusing on fiscal changes more likely to make it through like tax cuts and slashing spending programs.

In terms of judicial appointments, it’s unlikely that the next four years will see a court opening, but if we see one there will be a lot of concern over new issues we haven’t seen much of before like corporate personhood and campaign finance.  When you look at Romney’s Massachusetts record it’s a mixed bag; as a president he will likely play by the Republican playbook, making appointments from a similar pool to George W. Bush.”

  • Caroline Fredrickson, President of the American Constitution Society for law and policy, explains why what’s at stake for the Supreme Court in 2012 is so much larger than usual regardless of which party wins:

“ACS is a nonpartisan organization, so we don’t get involved in elections or discuss individual political candidates, but the future of the Supreme Court in particular is of great interest to us.  Supreme Court justices often serve for decades, far outlasting the presidents who appoint them. The current Supreme Court is among the oldest since the days of the New Deal. That means the next president is likely to be able to put his stamp on the Court for years to come. And with the Court so often divided 5-4 along ideological lines, the stakes are higher than usual.

Whether a progressive or conservative joins the high court will likely have an enormous impact on myriad issues of great concern to the American public. Issue areas most likely to be impacted by a change in the Court’s makeup include congressional authority to solve national economic problems, judicial integrity, criminal justice, voting rights, the separation of church and state, reproductive rights, equality issues, privacy rights, national security, to name a few.  In particular:

  • A more conservative Supreme Court could be open to pre-New Deal interpretations of the Commerce Clause, which would dramatically restrict Congress’ ability to confront national problems.
  • A more conservative Supreme Court might permit corporations to attempt to influence judicial decisions that could impact their bottom line.
  • A more conservative Supreme Court is likely to dramatically restrict efforts by Congress to remedy past discrimination in voting and elsewhere.
  • A more conservative Supreme Court would likely threaten diversity in higher education.
  • A more conservative Supreme Court could not only stand in the way of full equality for the LGBT community but might also limit (or eliminate) the privacy rights of adults.
  • A more conservative Supreme Court could uphold onerous restrictions on a woman’s right to choose and otherwise limit her reproductive freedom – even overturn the landmark Roe v. Wade.
  • A more conservative Supreme Court could turn back the clock on protections for people in police custody, and make it easier to establish a surveillance state.
  • A more conservative Supreme Court could sanction the death penalty to be used on children and for a wider array of crimes, as well as on the mentally disabled.
  • A more conservative Supreme Court would likely be much more deferential to presidential action in national security matters.
  • A more conservative Supreme Court could weaken the separation of church and state and entangle religion and politics.”
  • Professor Jack Rakove, the William Robertson Coe Professor of History and American Studies at Stanford University, explains that a lot of the power lies with the justices and the timing of their retirement, not just the next president:

“First of all, a lot depends on the justices themselves and when they decide to retire.  Justices now time their retirements so they can make sure that someone sympathetic to their views will fill their seats.

Second, there’s not much reason to believe that Romney has a sophisticated understanding of the Constitution – but this is true of many presidents.  Romney has no background in constitutional law and has taken fairly conventional conservative positions on a variety of issues.  The conservative legal apparatus has become very effective in identifying a pool of candidates (though Bush’s nomination of Harriet Miers was somewhat off the beaten path) that Romney could choose from.

Third, and assuming no judicial appointments initially, there are several big decisions within the coming year that could also shape the politics of future appointments. There are major cases coming up, for example, involving affirmative action and voting rights. If the Court took radical decisions in these areas, Democrats in turn might finally discover the courage to oppose some nominations if they seemed too conservative.”

  • Professor Wendy Schiller, Associate Professor of political science and public policy at Brown University, lays out why Republicans would need to also take back the Senate in order for Romney to impact major Supreme Court changes:

“The impact of a Romney victory is actually contingent on whether he can bring enough GOP senators in with him to take control of the Senate.  Lets say that the Senate goes 52-48 for the GOP – they would likely institute some form of what has been called the “nuclear option” which would be a motion by the majority leader (McConnell likely) to prohibit filibusters on Supreme Court nominations.  That ruling would be upheld by the presiding officer and then a Democrat would appeal the ruling of the chair but the ruling would be upheld by a simple majority of GOPers.  However, it is unclear to me that every single GOP senator would vote for it so it might not pass in any event.  Without that provision, Romney could nominate very conservative judges to the Supreme Court where there will be at least 2 vacancies but they would not get through the Senate. Still, Romney could nominate fiscal conservatives who have no written record on social issues, which would make it much harder for Democrats to oppose.   And certainly one would have to expect that Romney would nominate business friendly judges who view unrestrained capitalism as a core component of our democracy.

A Romney influenced Supreme Court would likely limit the scope of federal power, both in the legislative and executive branch and return to a more literal interpretation of the Constitution where individual rights are a given, not granted or created by the state in any explicit form and therefore cannot be limited by government without very compelling reasons.  In that sense, the court would actually end up constricting presidential powers, which might be an irony for the sitting president (Romney).  Within this purview, Roe v. Wade would not be completely overturned; rather, the decision to allow abortion would most likely be sent down to the states in the context of limiting federal power.

In addition, a Romney influenced Supreme Court would not overturn Citizens United, nor would it be inclined to support any other kinds of limitations on free speech.   Although Romney has not spoken much about the court, or the Constitution more broadly, I do believe he accepts the document as it stands, not as an evolving or living document but rather a statement of principles that is designed to limit government powers in the name of individual freedom.”

For more on the 2012 Presidential Elections, please see: