Kennedy and the Court’s four stalwart conservatives—Alito, Roberts, Scalia, and Thomas—will almost certainly remain through Obama’s first term. But things get much more uncertain after 2012. By 2016, both Justice Scalia and Justice Kennedy will turn 80.*It is certainly possible that they will stay past the 2016 elections—after all, Justice Stevens is pushing 90—but who knows?
President Obama’s political task, three years from now, will be to convince the country that he, not a Republican president, should make that potential appointment. The point isn’t to show that he would move the Court leftward if re-elected in 2012—he’d probably be better off sending more moderate signals, which is another reason not to expect him to choose a strong liberal to fill Stevens’ seat. Obama should instead stress that if a Republican wins in 2012, Scalia and Kennedy will probably retire. That would give the new Republican president the chance to entrench the five-justice Republican majority for decades—and to cement it, by replacing Kennedy with a wholly reliable right-wing vote. That’s the Supreme Court script for the Democrats in 2012.