With Obama Win, Supreme Court Likely Set Until 2015

Obama will likely get to name Ruth Bader Ginsburg's successor in three years.

Supreme Court Justice Ruth Bader Ginsburg waves to the audience during a speaking engagement at Yale University on Oct. 19, 2012.
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With President Barack Obama's win Tuesday night, the makeup of the Supreme Court that upheld his healthcare reform act in July, will likely stay intact — barring an unexpected illness or death, —through at least 2015, experts say.

Obama will likely get the chance to appoint a successor to Ruth Bader Ginsburg, the 79-year-old justice who has said she plans to stay on the bench until she is at least 82 — the same age as Louis Brandeis was when he retired in 1939.

"There was some pressure on her to retire a couple years ago, but I think she enjoys her job," says Amy Howe, a partner at Goldstein & Russell, a Supreme Court litigation firm. Howe has worked as editor of the popular SCOTUS Blog since 2003. "I think come 2015, she'll face a lot of pressure to retire to make sure Obama could name a replacement," she adds.

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On the conservative side, Antonin Scalia and Anthony Kennedy — who is usually the court's swing vote — are both 76, but by all accounts, both are in good health and likely to remain on the bench through Obama's second term. If Mitt Romney had been elected, one or both would have been prime candidates for retirement, says Daniel Marcus, a professor at American University's Washington College of Law.

"I think Scalia and Kennedy will stick around," he says. "If Romney had won, one of them might have said, 'I've been here a long time; maybe I'll quit so Romney can appoint a successor.'"

If Scalia, Kennedy, or another justice unexpectedly retires or needs to be replaced, Marcus says the close split in the Senate will likely ensure that Obama will have to nominate justices who aren't too liberal.

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"Because the Senate is so closely divided, there'll be continued pressure on [Obama] to nominate moderate candidates," he says.

Howe agrees, but says that come 2015, Obama will likely also face pressure to nominate another woman in order to keep the even gender ratio of the court. But, unlike President George W. Bush, the Obama administration has not appointed what Howe calls a "deep bench of young federal justices."

"The Obama administration has not been aggressive about getting people onto the bench, so there's not a lot of obvious candidates," Howe says. One potential candidate could be Jacqueline Nguyen, a U.S. Court of Appeals judge in the Ninth Circuit, who Obama nominated for the position in late 2011 and who assumed office in May.

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"She's only 47 and she's got a good back story: She moved to the U.S. from Vietnam when she was young and was the first Asian-American federal appellate judge," Howe says.

Going into 2013, the court will have to decide on the affirmative action case it heard earlier this month, and challenges to the Defense of Marriage Act (which defines marriage as the union of one man and one woman) that the Obama administration has stopped defending. The court could also take up the Voting Rights Act of 1965, which requires states that were discriminating against minority voters in the 1960s to get approval from the Justice Department any time they want to make a change to voting laws.

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Jason Koebler is a science and technology reporter for U.S. News & World Report. You can follow him on Twitter or reach him at jkoebler@usnews.com.