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The VICE Guide to the 2016 Election

What the Next President Could Do to the Supreme Court

With four justices approaching their eighth decade, whoever takes over the White House next year could have a change to dramatically alter the bench.

The Supreme Court wrapped up its 2015 session on Monday, and predictably, presidential candidates have been vomiting talking pointsin response to the landmark decisions handed down in the past week. With over a dozen Republicans and a handful of Democrats who have been angling for the White House, though, it's easy to forget that one of them is going to actually have to do this job at some point. And part of that job—arguably, one of the most important parts—is going to be nominating at least one Supreme Court justices.

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The current SCOTUS lineup—has been in place since Elena Kagan's confirmation in 2010—is, by any measure, very old. Liberal mainstay Ruth Bader Ginsburg is an 82-year old pancreatic cancer survivor; conservative giant Antonin Scalia is just a little younger at 79; and Anthony Kennedy, the court's typical swing vote and author of every major Supreme Court opinion concerning gay rights dating back to 1996 is 78. Stephen Breyer, a Clinton appointee, is 76. And Clarence Thomas, although a youngster by comparison at 66, has been on the bench for more than 20 years, and his strange silence over the last eight or so suggests he might not be in love with the job.

Related: Why the Supreme Court Ruling Against the EPA May Not Be a Big Deal

With four justices who will be in their 80s by 2020, it's likely that whoever takes over the White House will get to fill at least one spot on the bench—a decision that could dramatically shift the balance of the court. Ginsburg's future in particular has been the source of much speculation since 2014, when it became clear that Democrats weren't going to hold their majority in the Senate after the midterm elections. Some liberal commentators called on her to resignto give Barack Obama a chance to pick a likeminded successor, but Ginsberg has so far unequivocally declined.

Should she change her mind though—or if Breyer decides to step down—a Republican president would likely nominate a conservative successor, giving the right-leaning justices a clear majority on the bench. Conversely, if Scalia or Kennedy decides to retire, a Democratic president could pick a liberal successor, tipping the scales to the left. Even one replacement has the potential to alter the way the Court falls on major decisions. Bush v. Gore, Citizens United, and now Obergfell v. Hodges are all recent 5-4 votes split down ideological lines—in each case, just one judge could have changed the course of the decision entirely.

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"It is inevitable that there's going to be a change,"said James Magee, a University of Delaware political science professor who specializes in constitutional law and the Supreme Court. "If Hillary Clinton or another Democrat wins the election next year, Ginsburg will probably retire, with the assumption she'll be replaced by someone who shares her values."

Ironically, though, the intense political polarization that has gridlocked Congress for the past five years could actually lead to more moderate Supreme Court justices down the line. The heightened political stakes for presidential nominations, Magee explained, have made it nearly impossible for ideological purists from either side of the political spectrum to get through the notoriously arduous Senate confirmation process—especially when the Senate and the White House are controlled by different parties.

"Someone like [Harvard law professor and liberal constitutional scholar] Laurence Tribe or [Senator] Ted Cruz could never be nominated, because they're too predictably liberal or conservative," Magee said.

Presidents looking for a reliable ally on the court also often have trouble predicting what their nominee will do once they get on the bench. Former Justice David Souter, for example, was a former Republican attorney general of New Hampshire nominated by George H.W. Bush, but turned out to be a reliable liberal vote on the court. And Chief Justice John Roberts, who was nominated by George W. Bush and confirmed by a Republican-controlled Senate in 2005, has outraged conservatives with his two decisive votes on the Affordable Care Act.

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Sam Erman, a University of Southern California law professor who clerked for both Kennedy and former Justice John Paul Stevens, suggested that political chatter around the court stems more from politicians and the media rather than the justices themselves. "They have the job for life, so they don't have to worry about politics in the way that other powerful members of the government have to,"Erman said. "So even though their decisions seem political to us, I think that the justices are committed to the notion of legality."

Even so, 2016 White House hopefuls likely have a pretty good idea of what they'd look for in a potential justice. Jeb Bush, who's been trying to sell himself as the most reasonable Republican option, has singled out Thomas as his closest ideological match on the current court. Hillary Clinton told a group of Democratic fundraisers in May that her "test"for future Justices would be a pledge to overturn Citizens United. Bobby Jindal thinks we should just get rid of the court all together.

It's also possible, Erman noted, that the current justices decide to stay on the bench, regardless of old age, for the simple reason that people are living, and working, longer. "Even if everyone is appointed at the same age, their tenures on the court will be longer,"he explained. "So these influential moments for presidents [to nominate justices] may become farther and farther between."

As for Ginsberg, the beloved liberal jurist and feminist meme, Erman warned against predicting her future. "She's still at the top of her game, and hasn't indicated that she wants to retire,"he said. "People have underestimated Ruth Bader Ginsburg before."

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