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Supreme Court’s future may hinge on election

The next president is expected to name at least one new justice to the closely divided court.

Charles Dharapak/AP/FILE

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Whoever is elected president on Nov. 4 is expected to name at least one new justice to the US Supreme Court, and perhaps as many as three.

With the nine-member court closely divided on hot-button issues like abortion, affirmative action, and the death penalty, a change in personnel could set the stage for big changes in the law. Despite such high stakes, the future of the court has yet to emerge as a central election issue.

The justices most likely to retire during the next four years, legal analysts say, are all members of the court’s liberal wing: John Paul Stevens, Ruth Bader Ginsburg, and David Souter. That means should John McCain replace a sitting liberal justice with a conservative justice, the balance of power on the court could shift decisively to the right on key issues. On the other hand, should Barack Obama replace a sitting liberal justice with a liberal nominee, the balance of power on the court would likely remain largely unchanged.

But Senator Obama’s first appointment need not be a mere place holder, some analysts say. He could use the nomination to appoint a relatively young, progressive justice capable of going head-to-head with conservative Chief Justice John Roberts for the next 20 to 30 years.

“The long-term trajectory of the court is in play,” says Richard Garnett, a constitutional law professor at Notre Dame. “[Obama] is going to want to appoint the next [William] Brennan or a left-leaning version of John Roberts.”

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