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Sri Srinivasan and the Future of the Supreme Court

By Robyn Hagan Cain on June 13, 2012 | Last updated on March 21, 2019

Let's speculate about the future of the Supreme Court together.

The New York Times reported last week that only 44 percent of Americans approve of the Court. Barring some kind of magic hat trick in the Affordable Care Act decision, that number is bound to decline.

With the Supreme Court's approval ratings flailing, and members of Congress salivating at the idea of leaving their own stamps on the Court, we wonder when Congress will start meddling in the Court's affairs. (On one hand, Congress is consistently less popular than the Court. On the other hand, when has Congress ever allowed a little thing like public disdain to get in its way?)

The most interesting tidbit from the Times poll is that 60 percent of respondents agreed with the statement "appointing Supreme Court justices for life is a bad thing because it gives them too much power," while one-third agreed responded that life tenure for justices "is a good thing because it helps keep them independent from political pressures."

With such strong support for limiting a justice's time on the Supreme Court bench, is there any chance that Congress would leapfrog over the cameras-in-court and ethics codes initiatives, and dare to touch the third rail of life tenure?

Just like the White House, the Supreme Court gets a brief honeymoon period whenever it welcomes a new justice. Unlike the White House, the SCOTUS bench can remain unchanged for years at a time thanks to life tenure. (For example, after Justice Stephen Breyer's confirmation in 1994, the court's membership stayed the same until Chief Justice John Roberts took his seat on the Court.)

So how would the Court's approval ratings be affected by a revolving door of justices?

Regardless of whether life tenure remains in tact, there will probably be some changes to lineup on the bench over the next four years. In February, SCOTUSblog's Tom Goldstein suggested, "The odds are good that Justice Ginsburg will retire in the third year of a second Obama term," while noting Obama's re-election was still uncertain. Justice Ginsburg, who is 79, is the oldest jurist on the Court, but Justice Scalia (76), and Justice Kennedy, (almost 76), aren't far behind.

If one of these three retire in the next presidential term, Deputy Solicitor General (and D.C. Circuit Court of Appeals nominee) Sri Srinivasan will be a likely contender for the Bench. (We previously floated the idea of "Justice" Srinivasan when he was appointed as Deputy Solicitor General in August 2011.)

Both the SG's office and the D.C. Circuit Court of Appeals are popular pools for Supreme Court nominees. (Justices Scalia and Thomas matriculated from the D.C. Circuit. Chief Justice John Roberts spent time both in the SG's office and on the D.C. Circuit. Justice Kagan was elevated to the Court from the Solicitor General's office.)

Do you think Sri Srinivasan's D.C. Circuit nod can be interpreted as an Obama vote of confidence for a future SCOTUS vacancy? Would nominating a 45-year-old whippersnapper -- who could arguably spend 30 years on the Court -- increase support for limiting life terms?

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