What might it mean to have five justices on the Supreme Court who were appointed by Democratic presidents? Since 1970, the year Harry Blackmun received Senate confirmation, there always have been at least five justices appointed by a Republican president on the Court. If Merrick Garland is confirmed to replace Antonin Scalia, he will join Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan as Democratic appointees to the high Court.
Also, the next president, especially if he or she serves two terms, is likely to have three other vacancies to fill on the Court. Since 1960, the average age at which a Supreme Court justice has left the bench is 79 years old. There will be three justices 79 or older in 2017, when the next president is inaugurated. Ginsburg will turn 85, Anthony Kennedy 81, and Breyer 79, all in 2017.
Thinking of a Court where there are five or even six justices appointed by Democratic presidents is tantalizing for those on the left, like me, who have spent their entire careers with a Court that has been decidedly right of center. So, where might it most make a difference?
Abortion rights. Most obviously, Roe v. Wade and the right to abortion would be secure. State laws imposing restrictions on abortions would be far less likely to be upheld. Since 2010, states have adopted about 290 laws limiting access to abortion. These statutes impose regulations on abortion providers, prohibit abortions earlier and earlier in pregnancy, restrict the use of insurance to pay for abortions, limit medicine to induce abortions, and create many other restrictions. These laws likely would not survive review in a Court dominated by Democratic appointees.