75% Chance of Liberal Obama Court; It’s the Popular Vote, Stupid
1) If Barack Obama is elected president and serves eight years, there is a roughly 75% chance that he will be able to establish a solid liberal majority on the U.S. Supreme Court.
2) You can safely ignore all those state-by-state polls of the presidential race that you’re being bombarded with.
The Supreme Court is just one liberal justice away from having a 5-vote liberal majority. Given Barack Obama’s decidedly liberal judicial philosophy, there’s little doubt that if he is elected and gets to replace Justice Kennedy or one of the four conservative justices, the result will be a solid liberal majority of at least five votes. That prospect is enough to keep up one at night. And what better way to fight insomnia than to check the life expectancy tables to see how likely this unsettling scenario is.
The answer isn’t comforting. If Obama is elected and serves for eight years, there is about a 75% chance that he will replace Scalia or Kennedy and establish a solidly liberal Supreme Court. Consider the following:
1) Six Supreme Court Justices have retired during the last 20 years. The five who have died – Brennan, Marshall, White, Blackmun, and Rehnquist – left the Court an average of four years before their death.
2) Justices Kennedy and Scalia are both 72, and American men who have made it to that age have an average life expectancy of 84.
Combining those two facts, we can compute the likely age at which Scalia and Kennedy will leave the Court. Specifically, the expected value (i.e., mean of the probability distribution) for their retirement age is 80. In other words, there is about a 50% probability that each man will leave before reaching age 80 in 2016.
Do the math (50% x 50% = 25%) and you can see that there is only a 25% chance that both Kennedy and Scalia will serve beyond the 2016 election. Conversely, there is a 75% chance that if Obama serves through 2016, he will replace Kennedy or Scalia and establish a solidly liberal Court. Of course, there’s no guarantee that Justices Thomas, Alito, and Roberts will all be on the Court eight years from now, so the odds of a liberal majority are actually greater than 75%.
It’s the Popular Vote, Stupid
We realize that they make for great TV and full employment for pollsters, but the truth is that you can safely ignore all those state-by-state polls of the presidential race that you’ve been seeing. Sure, we know that there will be 51 separate elections for president next Tuesday, but history shows that it’s the nationwide popular vote that effectively determines the winner. We can pretty much guarantee you that, unless the popular vote is essentially tied – that is, less than a 1% difference between the top two vote-getters – the winner of the popular vote will be the next president. We know that not because we have a crystal ball, but because it’s never been otherwise.
When the popular vote is essentially tied, there’s obviously no telling which candidate will win the electoral vote and thus the presidency. Thus twice, a candidate who trailed by a fraction of a percentage point in the popular vote – George W. Bush in 2000 and Grover Cleveland in 1888 – won an Electoral College victory. And in 1876, Democrat Samuel Tilden beat Republican Rutherford B. Hayes by 3% in the popular vote and led by 19 electoral votes, with 20 in dispute. In the Compromise of 1877, Hayes was given the 20 electoral votes and the presidency in return for an end to Reconstruction. But these anomalies prove the rule: win the popular vote by a meaningful amount and you’re the next president.