Trump, the Supreme Court, and the Uncertain Future

Article Placeholder Image
By Casey C. Sullivan, Esq. on November 10, 2016 11:56 AM

Well, that was surprising, right? If you were like most of us -- those of us who spent the last few days obsessively checking presidential polls, that is -- a Trump victory on Tuesday wasn't what you were expecting. But it happened, leaving Donald Trump in charge of the White House and primed to make his impact felt on the Supreme Court.

What a Trump administration looks like remains somewhat of a mystery. (Will he really force Apple to make all its iPhones in America? What "terrific" thing will he try to replace Obamacare with? What will America's nuclear policy actually look like?) But when it comes to the Supreme Court, we can make a few basic predictions, even in the face of a largely uncertain future.

Trump Will Influence the Direction of the New Supreme Court

With Trump in the White House and Republicans retaining control over the Senate, one of Trump's first tasks as President will be to fill the vacancy created almost a year ago by Justice Antonin Scalia's death. (Sorry Merrick Garland, looks like it was never meant to be.) That could be a relatively easy task, depending on whether or not Democrats decide to filibuster the new president's nominee, a decision that becomes more likely the more ideologically extreme a nominee Trump puts forward.

We have a fair guess of who that might look like. Trump has said that he wants a justice who will rule in the vein of Justice Scalia, a conservative and originalist.

Donald Trump has twice released a list of potential Supreme Court nominees; first 11, then ten more. (During the debates he twice dropped that total to 20, potentially indicating that the list had been culled just a bit.)

Those include relative judicial moderates like the Tenth Circuit's Judge Neil Gorsuch and more right-wing jurists like the Eleventh Circuit's William Pryor, who has called Roe v. Wade the "worst abomination in the history of constitutional law," which is saying a lot, given some of the Court's past abominations.

How Far Will Trump's Impact Reach into the Court?

Speaking of Roe, Trump has said that Roe v. Wade would be overturned "automatically" if he is able to appoint two or more justices. That is not exactly how things work, and any attempt to reverse Roe would face difficulty overcoming decades of precedent and the doctrine of stare decisis.

On many hot-button issues, such as abortion, LGBTQ rights, and affirmative action, the Court is not likely to sway too much for the time being. With one new Trump-selected justice, Justice Kennedy will remain the deciding vote and Kennedy has swung to the liberal side on those issues. For a while, the Court under Trump could look very much like it has for years.

Some historic battles could simply be removed from Supreme Court review, as well. If the Congress repeals Obamacare, for example, the fight over government-mandated contraception access would be upended. The battle over President Obama's immigration reforms are likely to be mooted too. (If Trump does decide to, say, register and track all Muslims in the United States, though, expect such controversial moves to come before the Supreme Court in short order.)

Of course, no one is getting younger. Justice Ginsburg is a sprightly 83 years old, Justice Kennedy is 80, and Justice Breyer is 78. None are openly planning for retirement anytime soon, but there's a fair possibility that a President Trump will get to put more than one justice on the Court during his tenure. If that's the case, expect the Court to swing much farther to the right.

For now, much of the future of the Supreme Court remains largely unknown. If anything is clear, however, it's that liberal's dreams of a left-leaning Supreme Court have been dashed, perhaps for some time.

For the latest Supreme Court news, subscribe to FindLaw's U.S. Supreme Court Newsletter.

Related Resources: