What does a Trump Presidency have in store for the Supreme Court? Answering this question requires considering two separate, albeit related, questions: (1) the impact of one or more Trump nominees on the Supreme Court, and (2) the possible legal challenges to policy Trump has endorsed that might end up in the Supreme Court. In this post, I’ll focus on the first question; in a subsequent post, I’ll look at the second.
One of the immediate implications of Trump’s victory is that President Obama nominee Merrick Garland’s hopes of getting on the Supreme Court are over. The seat left vacant by Justice Scalia’s death in February will remain open until the new President has an opportunity to make his own nomination. (Some have urged Obama to simply give Garland his seat based on the fact that the Senate’s refusal to hold hearings constitutes some sort of consent. But it is hard to imagine the current President seriously considering this constitutionally questionable path.) The Republican strategy of refusing to hold Senate hearings on the nominee until after the election worked. What looked a few weeks ago like a desperate stalling action that had run its course now looks like a high-stakes gamble that paid off.
Liberals are now urging Democrats to make a stand against whomever Trump nominates to the Court. Although some sort of stand will surely be made, it is hard to see how the Democrats can change the outcome. With a Republican-controlled Senate, Trump’s nominee will get a seat on the Court. Democrats will likely filibuster on Trump’s first Supreme Court nominee, which will just as likely result in the Republicans responding by revising its Senate rules and ending the filibuster for Supreme Court appointments.
The elimination of the filibuster will have effects on the Court for years to come. The predictable outcome of allowing the Supreme Court appointment process to operate with a simply majority requirement will be nominees whose ideological commitments place them somewhat further from the moderate middle—think more justices like Scalia and fewer like Roberts—at least when the same party controls both the White House and the Senate. Regardless of whether this is good or bad for the Court, it will allow Senators to extract more political advantage from the Supreme Court nomination process.
Who will a President Trump nominate to the Supreme Court? When it comes to Court nominees, Trump’s comments have been pretty standard Republican fare. During his campaign, Trump released a list of twenty-one people and said he would select his nominee from the list. The list, which Trump’s team compiled with the help of the Heritage Foundation and the Federalist Society, was filled with respected judicial conservatives, mostly judges on state supreme courts and federal courts. Trump has promised to appoint a justice who would overturn Roe v. Wade and protect gun rights. In a post-election interview, he reiterated his opposition to Roe and his commitment to appointing “very pro-Second Amendment” justices. For a candidate who defined himself by defying the Republican Party establishment, here he has seemed perfectly willing to fall in line.
If there is any space between Trump’s statements and Republican orthodoxy on Supreme Court appointments, it may be on the issue of gay rights. In the same interview in which he reiterated his opposition to Roe, he also said that he saw no reason to reverse the Supreme Court’s 2015 same-sex marriage decision, which he described as “settled” and “done,” adding that he was “fine with that.”
If Trump follows though on his campaign promise and puts a conservative on the Court who will carry on the legacy of Justice Scalia—and with a Republican-controlled Senate there is no reason to think he would not—then the new, post-Scalia Court will look very much like the old Scalia Court. The year or so of an eight-Justice Court will be a strange interlude, a historical footnote, its effects quickly erased. Those decisions in which Justice Kennedy sided with the liberals, such as affirmative action and abortion, will be safe for now. Those decisions that came down to a 4-4 split will likely be revisited in the near future. In this latter category, the 4-4 decision that will surely be revisited in the near future is the public sector labor unions case, Friedrichs v. California Teachers Association. The unions dodged a bullet when the Court split in the this case, thus allowing the Ninth Circuit decision, which went in favor of the unions, to stand.
The other major 4-4 split, United States v. Texas, will not be affected, since (a) it had the effect of keeping in place a lower-court ruling that was accepted by the Court’s conservatives (and would be approved by a new Trump justice, assumedly); and (b) it was a challenge to an Obama Administration immigration policy that Trump has pledged to reverse.
On the major hot-button issues, it is hard to see a single Trump nomination changing the direction of the Court. Even if the nominee wanted to go against Trump’s stated position and overturn the same-sex marriage decision, there would not be the votes to do so. There would still be only four justices to reverse course on affirmative action and abortion, both issues in which Justice Kennedy joined the liberals in major decisions last June.
But Trump may have an opportunity to appoint more than one justice to the Supreme Court. Some liberals had been urging Justice Ginsburg, who at 83 is the oldest member of the Court, to step down while Obama was still President, calls she pointedly rejected. Now the question is how much longer the she can continue to serve. The spectacle of the Ginsburg health watch will have an added element of reality-show drama, since it was Justice Ginsburg who made news over the summer by attacking Trump (who returned fire, of course) and then quickly backtracking and conceding that her comments were ill-advised.
And Justice Ginsburg is not the only member of the Court whose health will be of particular issue to Court watchers. If either of the next-oldest justices—Justice Breyer (78) and Justice Kennedy (80)—were to step down or be unable to continue to serve, the ideological configuration of the Court would be changed dramatically. If Justice Ginsburg or Justice Breyer is replaced by a conservative justice, the Court will move to the right on many significant issues. If Justice Kennedy is replaced the rightward shift would be less pronounced but still potentially significant. On those issues on which Kennedy sided with the liberals (gay rights and, most recently, abortion rights and affirmative action) there will likely be some more conservative outcomes.
This post originally appeared on ISCOTUSnow, the blog of Chicago-Kent’s Institute on the Supreme Court of the United States, on November 22, 2016.