Civil and Human Rights

Trump Presidency Ends Liberals’ Dream of Supreme Court Shift

By Greg Stohr

Donald Trump’s upset presidential election victory puts an end to dreams of a liberal U.S. Supreme Court — at least for four years and perhaps for a generation.

Progressive interest groups were relishing the prospect that the court would have a majority of Democratic appointees for the first time since 1969. A Hillary Clinton win would have let her nominate a successor to the late Antonin Scalia and perhaps make additional appointments to an aging court.

Instead, it’s conservatives who are suddenly in position to reshape the law, potentially affecting the rights of women seeking abortions, racial minorities claiming discrimination, gay couples looking to marry, and inmates challenging death sentences.

Filling Scalia’s seat will restore the court’s previous 5-4 Republican-appointed majority. In addition, Trump will take office with three justices age 78 or older, among them arguably the court’s most liberal member, Ruth Bader Ginsburg, the 83-year-old justice who called Trump a “faker” during the campaign.

The group also includes Justice Anthony Kennedy, 80, the court’s most frequent swing vote over the last decade. Kennedy, appointed by President Ronald Reagan, has given liberals some of their biggest legal victories in recent years. He wrote the 2015 ruling that legalized same-sex marriage and in June was the decisive vote to strike down Texas abortion restrictions and uphold a University of Texas affirmative action program.

The third is Stephen Breyer, 78, who strives to be a consensus-builder on the court but almost always votes with the liberals on the most divisive cases. Breyer and Ginsburg both have said they believe the death penalty is probably unconstitutional.

Although none of the three has disclosed any recent major health problems, Scalia’s sudden death on Feb. 13 at age 79 served as a reminder of the precariousness of any Supreme Court majority that depends on the vote — and health — of a single justice.

“As long as Justices Ginsburg and Breyer remain on the court, relatively little change from the past decade of Roberts court jurisprudence can be expected,” Elizabeth Wydra, president of the progressive Constitutional Accountability Center, said in an e-mail. “Should one or both of them leave the court in the next four years, that analysis could change dramatically. Abortion rights and marriage equality could be threatened. The court could become even more solicitous of corporate interests.”

Overturning Roe

At the last presidential debate, Trump said he would appoint justices who would vote to overturn Roe v. Wade, the landmark 1973 ruling that legalized abortion nationwide.

“That’ll happen automatically, in my opinion, because I am putting pro-life justices on the court,” Trump said. “It will go back to the states, and the states will then make a determination.”

Trump would need at least two appointments to accomplish that end. Of the current members, Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito have all backed abortion restrictions, although Roberts in some contexts has proven reluctant to overturn established precedents.

“Our country now stands perilously close to a return to the dark days when women were forced to put their own lives at risk to get safe and legal abortion care,” said Nancy Northup, president of the Center for Reproductive Rights.

Also potentially at risk is the court’s 5-4 gay-marriage ruling from 2015. Although Trump said relatively little about the subject during the campaign, he has vowed to nominate justices in the mold of Scalia, who issued a scathing dissent in the case. Scalia was a conservative icon whose “originalist” approach to the Constitution argued for limiting its protections to those clearly spelled out in the document.

Gun Rights

Multiple Trump appointments also could strengthen the 2008 Supreme Court ruling that said the Constitution protects individuals’ right to bear arms. Although that Scalia-written decision was a watershed victory for gun-rights advocates, so far the court has been reluctant to use it to invalidate anything other than outright handgun bans. Trump repeatedly said during the campaign that he would seek to bolster the Second Amendment.

“The Supreme Court was a very important issue in this election and was a particularly significant factor for those who voted for Mr. Trump,” said Carrie Severino, chief counsel of the conservative Judicial Crisis Network. “We hope he will stand by his promise to nominate judges in the mold of Justice Scalia.”

Trump has promised to select from a list of 21 people — all possessing at least some conservative credentials or Republican connections — for any high court vacancy during his four-year term.

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Among the most prominent names on the list are federal appellate judge William Pryor of Alabama, whose nomination by President George W. Bush led to a two-year partisan battle before he was confirmed in 2005; Florida Supreme Court Justice Charles Canady, who as a U.S. congressman crafted the federal law that bars what critics call “partial-birth” abortions; and Republican Senator Mike Lee of Utah, ranked by interest groups as one of the most conservative members of that body.

Trump’s list also includes a number of state supreme court justices and Republican-appointed federal appellate judges. Although the list generally drew praise from conservative and libertarian legal scholars, some said they didn’t trust Trump to follow through with his pledge.

‘Originalists’ or ‘Conservatives’

“Trump’s impact will depend on whether he appoints ‘constitutional originalists’ who make all government servants follow the law that governs them, or ‘judicial conservatives’ who defer to Congress and to him,” Georgetown University law professor Randy Barnett said in an e-mail.

Most of Trump’s prospective nominees are under 55, meaning they could have a decades-long run, much of it alongside Roberts, 61, and Alito, 66, and Thomas, 68.

Although Trump said during the campaign that any Supreme Court nominee would come from the list, Senate Majority Leader Mitch McConnell indicated Wednesday he expected the new president to consider other suggestions.

“I think he will be open to” advice from senators on high court choices, the Kentucky Republican said at a news conference. “I’ve got a few suggestions that I’d like to make.”

Trump’s election vindicates the gamble McConnell took when he and his Republican colleagues refused even to consider President Barack Obama’s nomination of Judge Merrick Garland to fill Scalia’s seat. The strategy risked a political backlash and the possibility that Clinton would use the still-pending vacancy to nominate someone younger and more liberal than the 64-year-old Garland.

In the short term, Trump’s presidency will test a court whose defining cases over the past eight years have included claims of executive overreach by the Obama administration. Those cases have found the court’s conservative wing trying to rein in the administration on such issues as health care, environmental regulations, and immigration policy.

Now the court will have to deal with a Trump administration that will be looking to shift the law in a different direction, perhaps with the help of a Republican-controlled Congress. The changed dynamic could unsettle the court’s alignment on questions of executive and congressional power — or at least force justices on both sides of the court’s divide to rethink the reasoning they used in the very different context of the Obama era.


This piece appeared in at least the following additional outlets:

  • Chicago (IL) Tribune (online)

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