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.