Federal Courts and Nominations

The looming issues awaiting Trump’s supreme court nominee

With Donald Trump about to name his choice for the ninth justice’s seat experts look at prospects for immigration, voting rights, LGBT issues and abortion

By Molly Redden, Jamiles Lartey and Tom McCarthy

Donald Trump is expected to announce his nominee to be the ninth supreme court justice on Tuesday night. On his shortlist are three federal court judges appointed by George W Bush, all with strong conservative credentials.

Whoever is selected is unlikely to be more of an enemy to progressive causes than the late Justice Antonin Scalia, who Trump’s nominee will be replacing. Rather than pulling the court to the right, chances are the court will resume the dynamic it has held for more more than a decade, with four reliably “liberal” justices, four conservative, and Justice Anthony Kennedy sometimes representing a “swing vote”.

But in many ways, the stakes have never been higher for those causes, with the actions of Donald Trump’s administration and the Republican party likely to come before the court. Here are some of the issues that may hinge on Trump’s nominee.

Immigration and other Trump executive orders

At the forefront of Americans’ minds as Trump announces his nominee are multiple court challenges to Trump’s executive order banning travel from seven majority-Muslim country. A federal judge in New York City granted an emergency stay against deportations stemming from the order.

It’s possible that Trump’s travel ban – or future orders – could land before the supreme court “relatively quickly” if the justice department asks an appeals court for emergency relief from the order, even before a ninth justice is confirmed, said Brianne Gorod, chief counsel of the Washington-based Constitutional Accountability Center.

But Gorod said it was difficult to predict how even a nine-member court might rule on the travel ban, cautioning against linking the perceived political leanings of any one justice with how he or she might rule.

“There’s reason to think, given the cross-ideological response that we’ve seen to these executive orders over the weekend, that even a Trump nominee might well recognize that these orders run afoul of the constitution and wouldn’t vote for them,” Gorod said.

“There’s no reason to assume that any of the current justices would necessarily bless this just because of where they normally fall in the ideological tracking on the court.”

Voting rights

Voting rights could become a key issue under the new court, especially as Justice Kennedy voted with the majority in the landmark 2013 Shelby v Holder case to strip away protections from the 1965 Voting Rights Act. The relevant section of the law had, for nearly 50 years, required state and local governments with a history of discriminatory voter suppression practices to obtain “pre-clearance” from the federal government before making any changes to their voting laws.

The 5-4 ruling to gut that protection unleashed an immediate wave of state laws that made voting more challenging, including the addition of identification requirements, scaling back of early voting and the tightening of registration rules. Many, including the Brennan Center for Justice have characterized these new rules as a transparent attempt to suppress the vote of demographics, such as black Americans and younger voters, who tend to vote for the Democratic party.

Baher Azmy, legal director for the Center for Constitutional Rights, said he was hopeful that if voting rights come before the new court during a Trump presidency Kennedy will recognize his obligation to rule on the side of voters. “Some justices might say that’s not my job, but he obviously believes in a robust judicial role,” said Azmy. “So if he perceives unfairness, let’s hope he stands up against it.”

Transgender rights

This spring, the supreme court will hear a case brought by Gavin Grimm, a transgender high schooler whose Virginia school has barred him from using the boys’ bathroom. Grimm argues that Title IX of the Education Amendments of 1972, the law that bars sex discrimination in the nation’s schools, prohibits discrimination based on his gender identity. Grimm’s case is the first case devoted entirely to transgender rights the justices have agreed to hear – meaning there are few clues to how they might rule. But there are many cases posing similar questions about federal law and gender identity waiting in the wings. In one such lawsuit, a Michigan corporation has asserted the right to discriminate against a transgender employee based on the company owner’s religious beliefs.

There’s another case before the court regarding transgender students – but it may not be on the docket for long. In 2016, Texas and roughly 20 other states challenged the Obama administration’s interpretation that Title IX prohibits discrimination against trans students in a case that was appealed up to the supreme court. If the Trump administration interprets Title IX differently, the justices will probably dismiss the case or return it to a lower court.

LGBT discrimination

The supreme court may in the near future be asked to take up the question of whether both parents in a same-sex couple have a right to be listed on their child’s birth certificate. Trump’s nominee may also cast a vote to decide whether or not federal anti-bias law protects gay, lesbian and bisexual people who are discriminated against on the basis of their sexual orientation. Currently, three federal appeals courts are considering this question, and any split between the appeals court would vault the issue before the supreme court.

Justice Anthony Kennedy has frequently sided with the liberals on the court to strike down laws that discriminated against LGBT people, and Trump’s nominee is unlikely to knock the court off its current course of expanding LGBT rights.


Trump has pledged to appoint “pro-life” judges to the court, with a potential view toward overturning the landmark Roe v Wade decision, which established the right to abortion. In an interview he gave shortly after he won the presidency, Trump acknowledged that if Roe v Wade were struck down, some states would ban abortion.

But Trump’s nominee is not likely to change the fact that Kennedy, a swing vote on abortion rights, is almost always the deciding figure on this issue. With his help, abortion rights advocates won a major victory last year when the court, voting 5-3, struck down a Texas abortion restriction that was considered the harshest in the country. The court ruled that the laws could not stand without a medical justification.

That victory may have convinced reproductive rights advocates that this is the friendliest court they will face for a generation – Trump’s nominee notwithstanding. They are challenging a 20-week ban on abortion, which is premised on the dubious assertion that fetuses at 20 weeks can experience pain. That challenge is in its early stages but could reach the supreme court.


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