The third branch of the federal government wasn’t on the ballot Tuesday, but voters shaped its future for at least a generation.
President-elect Trump’s upset victory means the U.S. Supreme Court’s conservative wing will shape its decisions for the immediate future. It also guarantees that Merrick Garland, President Obama’s nominee for the seat formerly held by Justice Antonin Scalia, will not be confirmed by the Republican-led Senate.
Beyond that, the future is unwritten. Trump’s unprecedented rise to power, as well as his disregard for longstanding American political norms, raises serious questions about the federal judiciary’s future under his watch. Here’s an attempt to answer some of them.
What happens to Scalia’s vacant seat?
Gone are the hopes that Obama’s third justice could tip the Court’s ideological balance towards the left. Merrick Garland, his nominee for that vacancy, will return to his old job as chief judge of the D.C. Circuit Court of Appeals.
Senate Majority Leader Mitch McConnell’s gambit to deny Obama the chance to fill that seat worked without any apparent electoral blowback. With that precedent set, will future presidents ever again get their Supreme Court nominees past a Senate controlled by the opposite party? I’m not optimistic.
Who will be the next justice?
On the campaign trail, Trump said he would nominate a jurist in the ideological mold of Antonin Scalia to fill the late justice’s vacancy on the Court. In May, the Trump campaign released a list of eleven judges he would consider appointing to the high court; he added another ten names in September.
Will Democrats be able to block Trump’s nominee?
It’s very unlikely. The GOP will likely hold 52 Senate seats in the next Congress, meaning Democrats would need at least three Republican senators’ backing to vote down any nominee—an uphill battle, to say the least. If they attempt a filibuster to prevent a vote, McConnell could invoke the nuclear option—changing the Senate rules by a simple majority vote—and abolish the practice for Supreme Court nominees.
But a bruising confirmation battle could still occur. With advance warning about Trump’s choices, left-leaning interest groups could build extensive research on the nominees’ judicial records and personal histories. They might not be able to block a potential justice outright, but they could make the process a headache for the Trump administration and Republican senators alike.
What would have happened if Clinton had won?
For the American left, the opportunity cost is incalculable. Replacing Scalia with Garland (or, if Clinton had won, a more liberal jurist) would have given liberals their first five-justice majority since 1970, ending a half-century of conservative leadership of the Court.
It’s impossible to know how a more liberal Court would behave with any certainty, but legal scholars anticipated major rulings protecting abortion rights, narrowing the scope of the Second Amendment, overturning Citizens United, and abolishing the death penalty.
How will the Court rule on major cases now?
Predicting how the justices will vote can be tricky, as best shown by Chief Justice John Roberts’s surprise vote to save the Affordable Care Act’s individual mandate in 2012. But we’ve seen some glimpses of the rightward lurch to come. (It’s unlikely a new justice will join the Court before its current term ends in June, so the cases currently on its docket will likely be decided by the current justices.)
During the Court’s 2015-2016 term, the justices appeared poised to hand down major rulings on affirmative action, the ACA’s religious exemptions, collective bargaining by public unions, and Obama’s executive immigration orders. Scalia’s death in February threw most of those cases into turmoil: the Court deadlocked in 4-4 splits on the immigration-order and organized-labor cases, and punted the religious-exemptions case back to the lower courts.
Justice Anthony Kennedy’s vote to uphold affirmative-action programs in Fisher v. University of Texas could deter a serious attempt to challenge their constitutionality while he remains on the Court. But attempts to revisit the underlying issues in the other cases are likely after Scalia’s replacement is confirmed. Conservative legal groups could also seek new challenges to gun-control laws as the courts continue to define the Second Amendment’s extent, while Republican-led states could redouble their efforts to restrict abortion rights.
After her criticism of him this summer, will Justice Ruth Bader Ginsburg recuse herself from cases involving Trump?
Apparently not. The U.S. Supreme Court fielded a number of last-minute appeals on election-related cases ahead of Tuesday’s vote, and Ginsburg didn’t announce her recusal from any of them. In one case, which dealt with an anti-voter-intimidation order in Ohio, she appended a brief comment reminding both parties voter intimidation is illegal under state law.
What do the other justices think of Trump?
Ginsburg’s notable exception aside, the other justices haven’t commented on him. But they’re also not cloistered monastics; they read newspapers and watch TV and know as much about him as we do.
While we don’t know their personal views on Trump, it’s worth noting he comes from a very different ideological place than any of the justices. Archconservatives like Justices Clarence Thomas and Samuel Alito, for example, belong to intellectual traditions that value the Constitution’s original meaning and a constrained interpretation of its text. But Trump hasn’t really articulated a view of the Constitution beyond his boilerplate support for conservative judges.
And while some of the justices likely agree with him on one issue or another, Trump’s syncretic brand of economic populism and ethno-nationalism doesn’t really have a kindred spirit on the Court. It’s also doubtful Trump’s racist attacks this summer on federal judge Gonzalo Curiel sat well with any of the justices, conservative or liberal.
What does Trump think of the other justices?
I don’t think Trump cares about the Supreme Court as an institution very much, and he’s rarely talked about most of the justices on it. A notable exception is Scalia: Trump frequently invoked his memory on the campaign trail after the justice’s death, saying he would appoint other justices in his image.
But he’s more often venomous than praiseworthy. After his spat with Ginsburg this summer, Trump described her as a “disgrace” and said her “mind is shot.” He’s also no fan of Roberts, whom he’s frequently criticized for casting the fifth vote to save the ACA’s individual mandate in 2012.
If the Supreme Court takes a hard turn to the right, is there any hope for liberals?
For starters, it’s not the nation’s only court. Obama’s appointments to the federal district and appellate courts have already shifted the judiciary’s ideological balance towards the left. Judges appointed by Democratic presidents currently hold a majority on nine of the 13 circuit courts of appeals, for example. That includes the pivotal D.C. Circuit, which rules on most cases involving the federal government, and most of the regional circuit courts.
A staunchly conservative Supreme Court could still deliver fatal blows to liberal economic and social policies. But it can’t be everywhere at once.
What happens if there’s a constitutional crisis?
That depends on the crisis. But it’s worth noting the Court has overcome sharp divisions in times of constitutional peril before. During the civil-rights movement, the Warren Court issued unanimous opinions on desegregation cases to maintain a united front against Southern resistance. The eight justices who heard U.S. v. Nixon labored to craft a common opinion that would force Richard Nixon to hand over the Watergate tapes, fearing that he would use any dissent to defy the Court.
The Court also has episodes of momentous failure in its history: Dred Scott and slavery, Plessy v. Ferguson and segregation, Korematsu and Japanese-American internment. But those decisions largely occurred when the Court was swept up in the prevailing mood of the nation; the current justices are far more insulated from Trump’s populism by comparison. If he exercises the authoritarian tendencies he displayed on the campaign trail while in office, the Court is well positioned to resist him even when other institutions have not.
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