Federal Courts and Nominations

Supreme Court debate: Stark contrasts emerge between Trump, Clinton

By Richard Wolf 

Under Donald Trump’s Supreme Court, federal abortion rights would disappear “automatically.” Gun control restrictions would be frowned upon. Justices would put the Constitution first, in the mold of the late Antonin Scalia.

Under Hillary Clinton’s Supreme Court, potential nominees would be vetted for their views on court precedents, such as the Citizens United decision that allowed corporations to spend freely on elections. But she might have one less nomination to make, having urged the Senate to confirm President Obama’s choice for Scalia’s replacement.

Those alternate legal universes emerged Thursday from liberal and conservative analyses of Wednesday night’s presidential debate, when the two candidates held their most detailed discussion to date about the future of the high court.

The upshot: Trump’s list of 21 potential nominees to replace Scalia and fill any future vacancies is far more specific than Clinton’s, who cannot bring herself even to cite federal appeals court Judge Merrick Garland by name. She endorsed him only as “the nominee that President Obama has sent” to the Senate.

“I think she’s clearly keeping her options open,” said Columbia Law School Professor Jamal Greene.

And on issues such as abortion and guns, Clinton’s positions were more nuanced than Trump’s. While she would stand behind the court’s 1973 Roe v. Wade decision legalizing abortion, he would let states decide the issue. And while she would seek to combine constitutional gun rights with new regulations, he would name justices who will “not do damage to the Second Amendment.”

The debate about the court left both sides something to cheer about.

“A Trump court would make America a dangerous and forbidding place for all but the wealthy and powerful, while Clinton’s vision for the court would serve our highest aspirations for an inclusive America where the rights of all people are protected,” said Nan Aron, president of the liberal Alliance for Justice Action Campaign.

“Hopefully, Ms. Clinton doesn’t really believe in her statement that Supreme Court justices should take particular sides in cases,” said John Baker, professor emeritus at Louisiana State University Law Center. “That idea completely undermines the most basic principle of the rule of law that judges are to be neutral.”

Whoever wins on Nov. 8 could have a major impact on the court, beginning with Scalia’s open seat. Three of the remaining eight justices are at least 78 years old, the average age of retirement at the court. A swing to the political left or right could affect abortion and affirmative action, criminal justice and the death penalty, campaign finance rules and voting rights — and much more.

Legal experts who had expected a broader discussion of the court’s role were disappointed. “Both candidates wasted an incredible opportunity last night to educate the American people on their vision of the Constitution’s role in our society and our courts,” said Elizabeth Wydra, president of the Constitutional Accountability Center. Instead, she said, they resorted to addressing “specific hot-button issues.”

The two hot-button issues that got the most attention were abortion and guns:


Trump said the court’s decision in Roe v. Wade would be overturned “automatically” following the appointment of new justices. “It will go back to the states, and the states will make a determination,” he said. But it would take the Supreme Court hearing a case and reversing its 1973 precedent before that could happen.

“Nothing is automatic when it comes to the Supreme Court,” said Erwin Chemerinsky, founding dean of the University of California-Irvine School of Law. “There would have to be a case.”

Clinton turned the tables by noting that Trump has called for defunding Planned Parenthood and punishing women who would have illegal abortions. “I just could not be more opposed to that kind of thinking,” she said.


Trump declared the Second Amendment “under absolute siege” and said if Clinton is elected, it “will be a very, very small replica of what it is now.”

Clinton declared support for comprehensive background checks, closing the gun show loophole and restricting semi-automatic weapons reasonable restrictions. “I see no conflict between saving people’s lives and protecting the Second Amendment,” she said. But she opposed the high court’s 2008 ruling in District of Columbia v. Heller for striking down the district’s gun law.

“I don’t understand how Clinton can claim to support the Second Amendment while simultaneously saying she believes that even the draconian DC gun law at stake in Heller should have been upheld,” said Curt Levey, a constitutional law attorney with FreedomWorks and the Committee for Justice. “Regardless of what she thinks about gun control as a policy matter, there’s little doubt that her Supreme Court appointments will result in the court overruling or eviscerating Heller.”

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone