One of the most enduring legacies of the next president will flow from a few words in Article II, Section 2 of the Constitution: the power to nominate justices to the Supreme Court. With the court still shorthanded after the death of conservative Justice Antonin Scalia, and with two of its sitting justices older than 80, the next president will shape the court, and through it the law of the land, for decades to come.
This has not been lost on the candidates.
Clearly, the court will take a different shape under a President Trump than it would a President Clinton. But just how different, and how quickly? Very different and, if Clinton wins, very quickly. If Donald Trump is elected president, the Supreme Court may, seat by vacated seat, move rightward toward its most conservative position in recent memory. If Hillary Clinton is elected, the court may quickly become the most liberal it’s been in at least 80 years.
To look into the future of the court, I simulated 10,000 hypothetical future Supreme Courts (and their vacancies) under both a President Trump and a President Clinton, looking at what the ideology of the likely swing justice would be. (I used Martin-Quinn scores for justice ideology.) Specifically, I looked at the ideology of the court’s “median justice” in the scenarios, figuring that the person in the middle would be the person most likely to swing in tight cases.
Clinton’s Supreme Court leverage lies in the short term: She could appoint a left-leaning justice to replace the solidly conservative Scalia, at which point the median justice would almost certainly become either Justice Stephen Breyer or Clinton’s appointee, either being reliably liberal. Prior to Scalia’s …