Craft & Sheppard's Supreme Court Review 

The Presidential Election and the Court

The Constitution assigns the President the power to nominate a justice.  Confirmation is subject to the advice and consent of the Senate.  Due to the Court’s role as the Constitution’s final arbiter and as the court of last resort, the Court and naming prospective justices have become hot button issues during presidential campaigns.  In modern times, justices typically serve for a generation, or longer.  Justice Stevens, appointed by Gerald Ford, has served for one-third of a century.  Republicans have won seven of the last ten presidential elections, and republican presidents have appointed seven of the nine justices.  “W” appointed the two youngest justices, Roberts and Alito, “conservatives” in their 50s.  The two oldest justices, Stevens and Ginsburg, usually labeled “liberal,” in 2008 turned 88 and 75, respectively.  Justices Scalia, Breyer, and Kennedy (the swing vote) are in their 70s, and Justice Souter is 69.  Given their ages, rumors abound about justices retiring.  Pundits opine in the next four years that the next president will appoint two or three justices.  In the next eight years, some predict as many as five justices altogether will step aside. Though solemnly uttered, these remarks are mere speculation.   
While the Court strives to be non-partisan in announcing decisions, elections do count and affect the Court. Before naming a prospective justice, a president will seek a like-minded nominee and carefully vet him or her, mindful that the Senate must confirm the nominee.  Therefore, by design, the democratic process shapes the Court.  Over time, new justices come on board and inevitably change the Court and its direction.
In addition, the President appoints the Solicitor General.  The Solicitor General represents the interests of the United States before the Court and is the Department of Justice’s third highest ranking official.  While pundits have tagged him as the “tenth justice,” admittedly an exaggerated claim, the United States is frequently either a litigant to a dispute before the Court or else the Court asks him to file an amicus brief. By long-standing tradition, the Court affords respect and gives deference to the Solicitor General.  When a case is accepted for certiorari, litigants ask for his support or, at a minimum, that he not oppose their position.  Thus, the election results in the President making a key appointment and influencing the Court on a wide range of issues that affect individuals, business, states, and of course, the United States.