Who’s Next? Looking Past the Justice Stevens Vacancy

[WSJ Law Blog]

We know some of you out there are already experiencing a little fatigue in regard to the retirement of Justice John Paul Stevens and the who’s-gonna-replace-him parlor game. (After all, we all kinda knew Stevens was going to retire soon. Plus, the complexion of the court isn’t going to change dramatically regardless of whom President Obama picks.)

For all those for whom this description fits, fret not. Rick Hasen of Loyola Law School in Los Angeles is already looking past the current vacancy to the next one. And this, LBers, is undeniably interesting.

Writes Hasen, in an article titled “Scalia’s Retirement Party”:

Obama is using the Supreme Court to position himself for re-election in 2012 not with the Justice Kagan-Wood-Garland choice of 2010 but by raising the specter of the retirement of 76-year-old Justice Antonin Scalia after the 2012 presidential election. The court’s recent Citizens United decision, striking down limits on corporate election spending, has been deeply unpopular, providing an opening for him to run against the increasingly conservative Court.

Interesting, eh? No doubt Obama will be able to get traction out of this from liberals and others in his base. But we wonder whether he’ll move the needle with undecideds in Ohio, Virginia and Colorado by talking down the Citizens United and Heller opinions.

Maybe not. But what if, muses Hasen, the court makes other right-leaning (and unpopular) rulings:

Last year the Court came pretty close to striking down a major portion of the Voting Rights Act: With new voting rights cases on their way, a 5-4 decision striking the law down could come before 2012. There could also be new conservative rulings on abortion, gun control, and even the power of Congress to pass health care reform. Each conservative ruling before 2012 could help President Obama.

By 2016, Hasen informs us, Justice Scalia will be 80 and Justice Kennedy 78.