Trump victory has enormous consequences for Supreme Court

By Robert Barnes

The Washington Post

WASHINGTON — The political earthquake that hit Tuesday night has enormous consequences for the future of the Supreme Court, swallowing up Judge Merrick Garland’s ill-fated nomination and dismantling Democratic hopes for a liberal majority on the high court for the first time in nearly half a century.

In the short term, Republican Donald Trump’s victory means that at some point next year, the nine-member court will be restored to full capacity with a majority of Republican-appointed justices, just as it has been for decades.

Trump’s upset victory likely changes the court’s docket, as well: With a stroke of the pen, the new president could cancel President Barack Obama’s regulations regarding the environment, immigrants and the provision of contraceptives under the Affordable Care Act, all issues that have preoccupied the justices in recent terms.

The long-term question will be Trump’s ultimate impact on the court’s membership and further down the line on the rest of the federal courts, where numerous openings on the bench await nominations.

Besides replacing Justice Antonin Scalia, who died in February, Trump may get the chance to replace liberal justices and move the court to the right for generations.

Two of the court’s liberals, Justices Ruth Bader Ginsburg and Stephen Breyer, are 83 and 78, respectively. Moderate conservative Justice Anthony Kennedy is 80.

As long as those three stay, the court’s rulings on sensitive social issues — protecting abortion rights, affirmative action and gay rights, for instance — are secure. But replacing any one of them could tilt the table.

That is why on Wednesday, many liberals were ruing a lost opportunity.

As Election Day dawned, said Elizabeth Wydra, president of the liberal Constitutional Accountability Center, “I was hoping we’d be looking forward to a progressive Supreme Court for the first time in my lifetime.

Richard Hasen, a law professor at the University of California at Irvine, wrote of similar feelings on his blog.

“The future of the Supreme Court was on the line last night, and Democrats, who had the first chance in over 40 years to have a progressive Supreme Court, blew it,” he wrote.

“The court is now likely to be conservative for the next generation, and the results are going to be felt in every aspect of American life.”

Tuesday’s election ensures that Kennedy will remain the court’s pivotal justice, for now. Trump has said he will draw his Supreme Court nominee from a list of 20 judges and one senator: Mike Lee of Utah, a Republican. All appear to be more conservative than Kennedy, the court’s longest-serving justice.

Kennedy is the member of the current court most likely to be in the majority when the court splits 5 to 4 in its most controversial decisions. Most of the time, he sides with Chief Justice John Roberts and the court’s other remaining conservatives: Justices Clarence Thomas and Samuel Alito.

But on some social issues, Kennedy sides with the liberals: Ginsburg, Breyer and Obama’s two choices for the court, Justices Sonia Sotomayor and Elena Kagan.

He joined them and wrote the majority opinion finding that gay couples have a constitutional right to marry; in fact, Kennedy has written all of the court’s cases protecting gay rights.

Last term, he wrote the decision approving the limited use of race in college admission decisions and voted to strike down a Texas law that the court said imposed unnecessary burdens on a woman’s right to obtain an abortion.

But three of the five justices supporting those issues are the oldest on the court. Abortion rights advocates immediately sounded an alarm.

“President-elect Trump has publicly pledged to overturn Roe and promised punishment for the one in three American women who will have an abortion in her lifetime,” said Nancy Northup, president of the Center for Reproductive Rights. She was referring to Roe v. Wade, the Supreme Court decision assuring a woman’s right to an abortion.

While the attention has been on Ginsburg and Breyer, replacing Kennedy with a more stalwart conservative would immediately affect the court’s dynamics. He has given no indication about how long he intends to serve on the court.

Ginsburg has said she will serve as long as she is up to the job. She would likely be loath to allow Trump to pick her successor; she caused an uproar this summer when, in interviews, she called him a “faker” and said she feared for the court and the country if he were elected. Courtroom sketch artist Arthur Lien said on Wednesday, Ginsburg was wearing the jabot she sometimes saves for days she dissents from opinions

Ginsburg turned aside calls from some liberals that she retire years ago so Obama could name her replacement. She said it was unclear whether the Senate would confirm her successor. And she told The Washington Post that there was no rush: She felt it was likely that another Democrat would be elected after Obama.

Garland, a moderate liberal who is chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, would likely have replaced Kennedy as the justice in the middle. Obama nominated him in March in part because in the past, Republicans have said he was the most likely Democratic nominee to win confirmation.

But Senate Majority Leader Mitch McConnell, R-Ky., declared on the night of Scalia’s death that Republicans would not act on any Obama nominee. The move brought charges that McConnell had politicized the process, but the gambit worked: It will now be a Republican president making the lifetime appointment to replace Scalia.

On Wednesday, McConnell said his decision caused “a hail of controversy” but that he “thought it best if the American people decided this appointment … And so, the American people have spoken and President Trump will send us a nominee, I assume, early next year.”

“Give Mitch McConnell a lot of credit,” said John Malcolm, a legal fellow at the Heritage Foundation. “He took a principled position and stuck with it.”

And, he adds, “it’s not just the Supreme Court that’s the issue.”

When Obama took office, only one of the 13 federal courts of appeal had a majority of Democratic appointees. Now, nine of them do. And Malcolm points out that while the Supreme Court hears about 70 cases a year, the appeals courts decide about 55,000.

Democrats complain that Senate Republicans have refused to move quickly enough on Obama’s nominees. When Trump takes office, there will likely be at least 100 vacancies on the federal bench.

For the Supreme Court, Trump has said his nominee will come from the list compiled with the help of Heritage and the Federalist Society, a conservative legal group. His nominee will be like Scalia in seeking to overturn Roe and be a strong supporter of the Second Amendment, Trump has said.