america, monday at 10:30 p.m. i'm ali velshi, thank you for joining us. justices of the supreme court include one justice in her 80s and seven in their 70s. the next president may get to a point two, three, even four justices shaping the nation's highest court for a generation. is black robes, gray hair, it's tonight

tonight's "inside story." welcome to "inside story," i'm ray suarez. four supreme court justices are north of 75 years old. when the next president takes the oath of office they'll all be well, older. not wishing anyone ill health or impairment, it is reasonable to assume the next president who will serve from 2017 to 2021 will be able to put his or her stamp on the nation's court. look. >> of the nine justices on the supreme court, four of them are over 74 years old. antonin scalia is 78, stephen

bryer, a steadfast linl is liberal is 76 and be ruth bade rfertion bader gindburg iser ginsburg is is 82. if ginsburg has to retire shifting the court to the right, as it stands with ginsburg the court has four reliable votes, to the right with chief justice roberts, there are four conservatives, and anthony kennedy, the swing vote over four of the five biggest decisions in the past ten years. ending affirmative action, and

giving the presidential nomination to george w. bush. >> if the justices would have a chance to replace her with somebody more conservative there would be five conservative votes even before you get ojustice kennedy. >> court watchers say justice ginsburg appointed by president clinton in 1993 seems tired in the past years. she seemed to fall asleep but ginsburg blamed the incident on a few glasses of wine before the event. but after a few health scarce, she says she is feeling great. >> i think i should do this job as long as i should do it full steam and whether i begin to slow down i think i will know. it hasn't happened yet. >> the last supreme court justice to retire, john paul stephens, left the court at age 90.

by all accounts the job has prestige, great hours, a long summer vacation, and provides the justices with tremendous indulge intellectual stimulation. >> being a supreme court justice, i think it helps keep them sharp. >> supreme court announcements are usually be played at the end of the term. the current supreme court term is slated to wrap up at the end of this month. >> and al jazeera's david york. welcome back to the program david. do any voters go into voting booths in those big quad rennial novembers? >> usually ray, it's not something on the top of people's agenda but you often hear the

parties, and you're starting to hear progressives try to make it an issue for 2016. you'll hear them say this presidential election is the most important ever because there may be two or three justices that a president can replace or fill. you're starting to hear that to a certain extent from progressives, that say wait a second, we have more of the court. there is no indication that kennedy or scalia who are 78 and 79 years old, there's no indication that they've got any plans to go but we may be a little bit concerned about ruth bader ginsburg or other democratic leaders. >> circumstance could make it an issue in 2016. this demographic reality this asian to

gerentocracy that we have at the top of the court not only for me but who's going to be on this court for years to come. >> it's especially going to matter ray if over the past couple of weeks there are no court retirements and democrats are looking up and seeing well wait a second, justice ginsburg and bryer brie breyer want to hang around. the age justices on our side, in many cases, you're going to hear a lot about abortion rights or law enforcement, these are the sort of issues that parties will try opersonalize them with. even though you don't understand the intricacies of the fourth

amendment if you believe in a political agenda you need to make sure that a democratic president gets the election so your views will be maintained on the supreme court. >> forced by nature and their health circumstances to leave, has there been in recent decades, i couldn't think of one, a time when a sitting president, an outgoing president gets to pick someone for court as his office is being fought over for that coming november? >> yeah, that is a great question. and i can't recall one either. and usually, the justices themselves have been pretty good, for instance justice stephens, you wouldn't have to worry about that transition period and perhaps the political gamesmanship. if we are looking up and say all we have to do is delay confirmation hearings for another couple of months, that

is something the justices have thought about and tried to avoid but not something they can necessarily control. >> only about 25 members of the senate are running for president so it shouldn't be a problem. david schuster, thanks as always. recent presidents have made what might be a long lasting mark on the court by appointing younger justices. chief justice john roberts and associate justices kagan and sotomayor, big changes could be coming, black robes, gray hair it's tonight's "inside story."

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story," i'm ray suarez. black robes, gray hair. there are four justices clustered around 80 years old. we're talking about the reasonable assumption the next president whoever that may be could have a big impact on the makeup of the court for a long time to come. joining me are allen porter mendenhall and gabe ross executive director of fix court, who advocates for change and trups in the operation of be transportcy.

transparency. >> if you accept this concept that there's a 4-4 split with kennedy in the middle as a swing vote then you know the court's twg to be tipped one way or the other. only four presidents in history have not nominated a candidate to the supreme court. two of those died and their immediate successors nominated somebody. jimmy carter is the most recent president not to. you can be pretty certain that the next president will get to nominate somebody and given that four justices will be in their 80s during the next administration's four year term i think the likelihood is even high are. and the opportunity to nominate 4, with a 54% majority in the senate, we are looking for a 7-2 majority for republicans, and on

the other hand the democrats have a chance to get a 6 -3 majorities, given scalia's conservative voting record. >> do you believe that justices gain their requirements, unless they have to leave they keep an eye on the politics of it, who's in the senate and who's in the oval office? >> i definitely think that they do, ray. and it's a shame, really. there shouldn't be any partisan politics at the supreme court. we know that hasn't been the case, there has been partisanship at the highest court but politics is supposed to be out of the court. what we see the court advocate for is a standard 18-year term for supreme court justices. so every two years there would be a new justice coming in, two times nine justices so that would be an 18-year term. so that's what we've been

advocating for and that's what we hope the next individual appointed to the supreme court will pledge, only 18 years. that's plenty of time to learn the ropes, get major decisions in there and not be there for 35, 30 years like some of the recent retirees. >> gabe i appreciate your optimism but this is a senate that can't even agree that the sunrises in the east and sets in the west. you would need a constitutional amendment that would set supreme court terms. >> you would define the term office in the operative part of the constitution, and the rest of the time on the federal bench, what sandra day o'connor

does, sit on the circuit court of appeals. we talk about conservative justices, liberal justices that's not an ideal situation for the american justices, the current way it's construed it's not. and we need to make sure it returns, instead of being the most powerful, least accountable branch it needs to be the apolitical branch which is what the founders envisioned. >> allen port he mendenlal, if we could depoliticize the court a little bit? >> i think it would but i hear this one recommendation. i'm not sure how that would square with the provision that in the constitution, that the justices can serve under good behavior, but, you know, one problem i see is that the constitution is itself the most

apolitical element of the justices job. but we have so many years of press accidents in the doctrine of sare decisis, an old common law doctrine and now you have precedence on top of the constitution. and unless you can get underneath all those precedents, i don't know you can get to the apolitical constitution. >> gabe is suggesting term limits and when you look at something like justice kennedy who has been around for 27 years, antonin scalia who has been around osimilar length of time, they get to cast a pretty long salad owe across political history. people didn't live that long in 1789. were we really planning to have a court like this, first gabe. >> no, i don't think the founders were.

the average life expectancy at the time of the constitution was about 50 years old. they didn't expect that. the way the escort is built, presidents are -- what they try to do is find the most ideologic individual who's young enough, who's old enough to have some experience but young enough they can survive another 40 years. you look at the last set of nominees, roberts was 50, kagan was 50, alito and sotomayor was also 50. what the presidents were incentivized to do is find somebody who is very ideologic and already has these entrenched views. most of the justices in the supreme court worked in a presidential administration, whether it was reagan or ford or obama, most worked in a presidential

administration, i don't think you want third parties deciding how to interpret our laws. >> this latest era that gabe defines really start with clarence thomas who was young was ideologic could be expected to be around for a long time on the bench ? >> well, i do think it started about that time. and clearly, it's become the trend . i think in the past 30 years or so justices started to search 20 years or so. president saying i think it's good thing to nominate somebody who's only he going to be on the court for a decade or so, the whole system is structured to

incentivize someone who can stay on for a long time. i can't blame the president for wanting to do it. i can't blame senators who are under pressure from special interest groups and these sorts of things to want to nominate somebody who is going to comport with their long term vision for america and fort for the courts. whether that is good structurally is another somewhere question. what i'm hearing gabe say about the age raises a good point about the constitution which provides no mechanism for a supreme court justice who is incapacitated in some way say in a vegetative state is in a coma or some sort of situation like that. there's no mechanism constitutionally for removing that person from office if that person can't voluntarily do so and i think the one thing is -- >> gabe quick response. >> a number of the justices i'm

not going to name names here necessarily but a number of the justices we've heard stats or seen inside stories who recently had this set of decrepitude these are all incredible scholars and we respect them a great zeal. however there is a limit to the amount of term that we believe they should serve and we they it's in the best interests of the country that they spend more time with their grand kids after a certain period on the courts. >> gentlemen thanks for joining us on "inside story." the two major political parties have a lot riding on this election because the supreme court can affirm or unraffle years of political victories for republicans and democrats. there are already short lists and speculation about who the next generation of justices might include depending on who raises his or her hand to take

the oath of office as the next president in 2017. black robes, gray hair is tonight's "inside story."

activists from both national political parties worked to elect the next president with a wish list in their heads and you can be very sure many are clear on the role the next president can play on shaping the new supreme court. look at hobby lobby, bush v gore, if you don't think it matters who's on the supreme court you aren't paying attention. joe patrice, deeply immersed in all things supreme court welcome to the program about. >> thanks for having me.

>> well there have been 5-4 major decisions, everyone is watching anthony kennedy yet again. is this a pretty balanced court that we have now? >> not to undermine how many 9-0 decisions there have been, there are a lot of supreme court cases that are not moving the needle politically. but on things that really matter to people politically, we have four conservatives, four liberals, and justice kennedy is chair of the party that is conservative on everything but gay marriage. >> is there a change on two or three justices in the term of the next president, could it swing the court really much more toward one tendency or another? >> absolutely. the most likely two justices to

go are scalia and ginsburg. whatever party is in charge tally. when you add in the fact that justice scalia is -- when you add in the fact that justice kennedy is also going to be 80 that justice thomas has had some health issues in the past, there is a lot of opportunity for the court to have a massive swing. >> if you look at the votes, not only the votes but the massive decisions as well, that the decisions are not as liberal as the republicans are conservative? >> the democrats tend to approach the nomination process as a genteel summit with a disagreeable friend whereas the republicans approach it more like pulling a knife in a bar fight. what i mean by that is the democrats don't want to have a drawn out protracted fight over who the nominees are.

that's why even though there have been some grand standing more or less the democrats have been appointing more moderate, not as liberal as they could justices just to make sure that they will get nominated. whereas conservatives have tended to be more willing to risk the gridlock of a fight to get someone who's ideologically admonish extreme and more in line with what their voters seek. >> does that make it easier to exaggerate how liberal the so-called four liberal justices are who include a former prosecutor in sonia sotomayor and a very pro-business vote in stephen breyer? >> absolutely. the idea this is a liberal covert seems to be somewhat ahick historical. william douglas would not be happy to see this is what is.

>> can you planning a 2016 election where voters are highly conscious of the fact that they will have a role in picking a president who is going to shape the court it's start starting in 2017? >> i would absolutely hope for that. i have hoped for that in several federal elections and always been slightly disappointed. for some reason the public literacy about the supreme court is really weak. i think that's a fault of all of us in making sure the people don't get a good basic grounding in what the supreme court does up there. that's partially involved with the way it shields itself in secrecy and doesn't allow cameras in. as much as we can have shows like this to raise this awareness that is the first step. we have to hammer home to people how important the supreme court is. >> very briefly before you go, can you give me one republican

one democrat who could be pas poble, court? >> if the republicans were to win, paul roble, he defended the defense of marriage act, he is the one who's fighting obamacare, former solicitor general, republican name. i think on the democratic side sri srinavasen, it was a 97 to zero decision, that's the kind of person who can get nominated. >> joe patrice is the editor of above the law. great to have you with us. i'll have some final thoughts about an aging court and replacing justices , you're watching "inside story," stay with us.

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confirmation hearings where would you have thought you were watching the hearings for some sort of national abortion court, rather than the court that decides on some of the most

important parts of our common life. presidents didn't even know what their appointees' viewpoints were on some of the hot button issues of our times. as the u.s. senate was being offered for its consideration, a wrapped and ribboned gift. unless the results were known after confirmation. i often believe the public should be more tuned in, it matters who's on the court and though you never know it from the voting habits of about 40% of american adults it therefore matter as a lot who is president. holding the keys to the justices chambers, vote as if you care who gets those keys. i'm ray suarez, see you next ton for "inside story."

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