The courts: the conservative takeover will be complete.

• Author: Lithwick, Dahlia
• Position: WHAT IF HE LOSES?

For anyone considering the 2012 election's importance to the future of the American judiciary, one fact stands out: next November, Ruth Bader Ginsburg will be seventy-nine years old. If a Republican wins the presidential election, he or she may have an opportunity to seat Ginsburg's successor, replacing the Supreme Court's most reliably liberal jurist with a conservative. That would mean that the Court--currently balanced almost elegantly between four liberals, four conservatives, and the moderate conservative Anthony Kennedy--would finally tilt decisively to the right, thereby fulfilling Edwin Meese's dream, laid out in his famous 1985 speech before the American Bar Association, of reshaping the Court around one coherent "jurisprudence of original intention." Meese, who was then Ronald Reagan's attorney general, wanted nine conservative constitutional originalists on the Court. He may soon get his wish. A 2008 study by Richard Posner, a federal appeals court judge, and William Landes, a law professor at the University of Chicago, examined the voting records of seventy years of Supreme Court justices in order to rank the forty-three justices who have served on the Court since 1937. They concluded that four of the five most conservative justices to serve on the Supreme Court since 1937 sit on the Supreme Court today. Justice Clarence Thomas ranked first.

Kennedy, who is ranked tenth in that study, will be seventy-six next November. If a Republican successor of Obama gets to replace both Kennedy and Ginsburg, it's fair to predict that the Roberts Court may include five or even six of the most conservative jurists since the FDR era. Following the ideological disappointment that was David Souter, Republicans have been spectacularly successful in selecting and confirming justices who consistently vote for conservative outcomes. Indeed, the replacement of moderate Sandra Day O'Connor with Samuel Alito may have produced the most consequential shift at the Court in our lifetimes; in a few short years O'Connor's pragmatic legal doctrine in areas ranging from abortion to affirmative action to campaign finance reform has been displaced by rulings that would make Edwin Meese's heart sing.

But it's not just the Supreme Court that would tilt further right. The high court only hears seventy-some cases each year. The vast majority of disputes are resolved by the federal appellate courts, which are the last stop for almost every federal litigant in the...