Sunday, October 11, 2015

Next president has 57% chance to flip the majority of the Supreme Court. Or lock it in for decades.

I'm revisiting my calculation from three years ago, projecting survival rates for the Supreme Court conservatives and looking at the next term. This time I'm not simply taking their ages through 2021 and applying actuarial tables. I think there are two fudge factors pushing in opposite direction.

First, the justices are probably much healthier than the average person their age, and they receive top-notch medical care. A better table would be one with mortality rates for people who are still working at their ages, but I don't have that. My WAG is their mortality rates are equal to the average person who's 4-6 years younger.

OTOH, a medical development doesn't have to kill them to push them out of office. If they're facing replacement by a Democratic president then they'd do anything to stay on the Court, but there's a limit. A debilitating stroke or anything compromising mental function could force them to retire.

I'm going to give a slight edge to the factor of better health, and assume the chance they'll avoid going off the Court due to death or disability is equivalent to the chance of someone two years younger of surviving through the next term. The odds work out to be 76% of Kennedy staying through January 2021, 73% for Scalia, 90% for Thomas and Alito, and 96% for Roberts, so that's a 43% chance of them all getting through.

I didn't calculate it for the four moderate justices but I'd guess the chance of replacing them would be equivalent (you can DIY:  ages here, actuarial table here).

I thought the 2012 presidential term would see a lot of Court turnover but I was wrong. At this point the Rs will filibuster any reasonable Obama appointment, accepting the moderate political damage to keep the slot open. The lack of change increases the probability in the next term. I think the odds are good that a bunch of justices in their eighties will get off the Court - both involuntarily if the president is from the opposing party and voluntarily moving into semi-retirement when they like the president.

Gay marriage, and some death penalty restrictions are at stake if things go badly, while restoring Supreme Court precedent controlling unlimited political funding could happen if things go well. I'm not sure about EPA authority to regulate carbon emissions, but it could also be at risk.

And once again, Supreme Court term limits would be helpful. We've had to put up with Scalia for 29 years on the Court. We can do better.