HLS Professor Predicts Future of Supreme Court

Harvard Law School Professor Mark V. Tushnet ’67 hypothesized that, in the event of an appointment to the Supreme Court in 2016, the judge appointed will be either Asian-American or African-American. This hypothesis came after Tushnet claimed to have accurately predicted the appointment of Justice Sonia M. Sotomayor in 2008.

Tushnet, a former law clerk for Justice Thurgood Marshall, made the prediction during a discussion of his new book, “In the Balance: Law and Politics of the Roberts’ Court,” which focuses on the ideological differences between the liberal and conservative factions in the current Supreme Court, led by Chief Justice John G. Roberts Jr. ’76.

Tushnet predicated his hypothesis on the idea that at least one current justice on the Supreme Court will retire around 2016, a scenario he said was likely given that both Justice Anthony M. Kennedy and Justice Antonin G. Scalia will turn 80 in 2016. However, he noted that any election of a liberal justice would be dependent upon the election of a liberal president in 2016.

“[Presidents] use Supreme Court appointments to create a legacy that is comparable to the President’s vision and/or will satisfy various constituents within the party,” he said.

Tushnet added that the appointment of a liberal or conservative Supreme Court judge in 2016 could sway the balance of power enormously within the Court.

In his talk, Tushnet discussed the rationale behind the increasingly ideologically divided opinions on the Supreme Court in recent years, saying that they represent broader divides in the American political system.

“The Supreme Court is generally reflective of what is going on in other parts of the government,” he said in an interview with The Crimson. “The core of the issue for the Court is a competition between a liberal and conservative vision for the national government.”

He further described the current Supreme Court Justices’ voting as falling into a similar pattern, with one bloc voting reliably conservatively, an opposing bloc voting reliably liberally, and one or two swing voters often determining the Court’s final decision.

Ultimately, Tushnet said his book conducts an in-depth investigation of the inner workings of the Court.

“[“In the Balance”] is written for an interested lay audience, that makes technical legal questions accessible to non-lawyers,” he said in an interview with The Crimson.