Geof Stone's SCOTUSblog Post on the Election and the Supreme Court
How much of a difference will it make to the Supreme Court whether Barack Obama or Mitt Romney wins the 2012 presidential election? This will depend, of course, on which, if any, of the current Justices step down in the next four years and on whether the president elected in 2012 is successful in filling those vacancies with the kind of nominee(s) he wants.
At the outset, I want to put aside four possible scenarios: (1) Romney is elected and gets no nominations; (2) Obama is re-elected and gets no nominations; (3) Romney is elected and gets to replace Scalia, Kennedy, Thomas, Roberts, and/or Alito; (4) Obama is re-elected and gets to replace Ginsburg, Breyer, Sotomayor, and/or Kagan. These scenarios are uninteresting, because they will not bring about any significant change in the ideological makeup of the Court.
The more interesting question is what happens if Romney is elected and gets to replace, say, the oldest “liberal” Justice (Ginsburg) or if Obama is elected and gets to replace the oldest “conservative” Justice (Scalia). In such circumstances, Romney would presumably nominate someone similar to the most recent Republican appointee (Alito), and Obama would likely nominate someone similar to the most recent Democratic nominee (Kagan).