Ruth Bader Ginsburg, center, is 81. Stephen Breyer, right,  is 75.

Supreme Court's Aging Liberals Roll the Dice

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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The most important news from the Supreme Court this month?

Sure, we’ve had landmark rulings in Hobby Lobby, Canning and several other cases. But the non-retirements of the court's two senior liberal associate justices, Ruth Bader Ginsburg and Stephen Breyer, might overshadow any of those decisions in the longer run.

Once again, the justices have become predictably ideological along party lines over the past 30 years or so, which is evident in strategic retirements (that is, retiring when a same-party president can replace them). By staying put, Ginsburg (81) and Breyer (75) are taking a huge risk if they want to be replaced by Democrats. If Republicans get a Senate majority this November, and especially if it’s a large majority, there’s a fair chance they will simply refuse to confirm any of President Barack Obama's Supreme Court nominees, and there’s nothing Democrats can do about that. And no one knows what will happen in 2016, but there's at least a reasonable possibility that Republicans could take the White House and hold it for eight or even 12 years.

Of course, it’s also possible that Democrats will retain the Senate in 2014 and the White House in 2016. And it’s also possible that a younger justice could die suddenly. And it’s also true that no one contends that Ginsburg or Breyer are slipping.

Still, their roll of the dice would have enormous consequences if their guesses about future elections and their own mortality turn out to be wrong. Which is why the 2014 midterm elections and the 2016 elections are taking on greater importance. However those elections turn out, if Republicans act strategically and Democrats don't, the future will belong to the conservative justices.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

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