How the Presidential Election Might Change Supreme Court

The country's highest court was barely mentioned during presidential campaign.

November 5, 2012, 12:18 PM

Nov. 5, 2012 -- The highest court in the land seemed like one of the lowest priorities of the presidential candidates on the campaign trail.

Even though the justices are closely divided on politically sensitive issues such as abortion, campaign finance, and health care, the composition of the court was hardly addressed by President Obama and former governor Mitt Romney.

"The future of the Supreme Court is the forgotten issue in this year's presidential election," Erwin Chemerinsky of the University of California Irvine School of Law wrote in a recent op-ed.

Although there is no public sign that any of the justices are ready to retire, the very fact that four of them ---Ruth Bader Ginsburg, Anthony Kennedy, Antonin Scalia and Stephen Breyer -- are in their 70s suggests that there is a possibility that the next president will be able to nominate a new justice.

That power often becomes a president's most lasting legacy. President George W. Bush has been out of office for four years now, but Chief Justice John Roberts and Justice Samuel Alito, his two nominees, could serve for years to come.

The current court is closely divided on some issues with five justices nominated by Republican presidents and four by Democrats.

If Romney were to win the presidency and have the chance to nominate a conservative to replace a liberal on the court, Roe v. Wade could be overturned and the issue of abortion rights returned to the states.

In the vice presidential debate, ABC News' Martha Raddatz asked Paul Ryan, Romney's running mate, "Should those who believe that abortion should remain legal be worried?"

Ryan answered, "We don't think that unelected judges should make this decision; that people, through their elected representatives and reaching a consensus in society through the democratic process, should make this determination."

Tune in to on Tuesday, Nov. 6 for livestreaming coverage of Election 2012. Our Election Day show kicks off at noon, and the Election Night event begins at 7 p.m.

While Justice Kennedy is seen as the potential swing vote with the liberal block of the court on some hot button social issues, those cases could be decided differently if Romney has the chance to add another conservative to the bench.

Who might be at the top of Romney's list to nominate to the Court? One of his legal advisers is the conservative trail blazer Robert Bork. Powerhouse lawyer Paul Clement, the former Solicitor General of the Bush administration, who fought the health care law on the part of 26 states and is currently defending a federal law that defines marriage as between a man and a woman, would be a top contender. Judge Brett Kavanaugh of the U.S. Court of Appeals for the DC Circuit and Judge Diane S. Sykes of the United States Court of Appeals for the Seventh Circuit Court might also be in play.

As for Obama, although the Supreme Court was rarely brought up on the campaign trail, he did discuss the issue of a woman's right to choose in a recent interview with Rolling Stone Magazine.

"Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency," he said, "and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen."

Supreme Court, the Forgotten Issue of Presidential Campaign

During a potential second term, if the president has the opportunity to replace one of the justices appointed to the bench by a Republican president, he could establish a majority liberal block with the new nominee joining Ginsburg, Breyer, Justice Sonia Sotomayor and Justice Elena Kagan.

"It's clear at the very least we could see a return to the liberal judicial activism of the Warren Court," says Curt Levey of the conservative Committee for Justice. "It would affect issues from abortion--the return of partial birth abortion ---almost surely a constitutional right to gay marriage and a reversal of the court's ruling that individuals have the right to possess fire arms. It would be a removal of basically all limits on affirmative action and a reversal of Citizens United," he said, referring to the court's landmark decision which said the government cannot restrict political spending by corporations and unions in elections.

Who would be potential candidates for Obama to consider? Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia was a recent top contender. Tom Goldstein, publisher of the popular Scotusblog, speculates that the president could continue the trend and nominate another woman, Kamala Harris, the attorney general of California.

Of course a Supreme Court justice's vote does not always correspond to the views of the nominating president. So far, however, Obama's nominees have been consistent liberal votes, and Romney has vowed on his web site to nominate "judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito."

The next president will also have the ability to shape the federal judiciary by nominating lower court judges.

"That's important because the Supreme Court only decides a small number in a year. It misses many of the big issues. Even on the big issues it reaches, it only gives broad guidance and the lower courts have to fill in the details," says Levey.

Join ABC News and Google+ for Election Night Hangouts – let us know who you are HERE.

ABC News Live

ABC News Live

24/7 coverage of breaking news and live events