Adam Bryla, Baruch College:
The U.S. presidential election has finally come to a long and awaited end, and Donald J. Trump is the last man standing. As many have heard from the media’s rhetoric this past week, the results of this election will have many implications in the U.S. and around the world. One of these implications is the much-expected return of a conservative Supreme Court.
Throughout the presidential race, Mr. Trump has consistently promised to appoint highly conservative justices who would uphold gun rights, walk back previous precedents on affirmative action, and ‘automatically’ overturn Roe v Wade, the 1973 decision acknowledging abortion choice as a right. Since the late Antonin Scalia died nine months ago, there have been only eight justices serving on the Supreme Court. Justice Ruth B. Ginsburg and Justice Stephen G. Beyer, the two senior most liberal members of the group, are both fairly old, 83 and 78 years old respectively. This creates a huge opportunity for Mr. Trump, and the Republican party as a whole, to stack the Supreme court with whoever they want. Being able to choose 1-3 conservative justices can have immediate implications that will completely change the composition of the Supreme Court and last decades if not more.
Currently, Mr. Trump has released two lists with a total of 21 judges that he plans to choose from. Almost all of the judges have constitutionalist judicial track records with vehement opposition to federal overreach, as well as opposition to abortion rights and same-sex marriage. Mr. Trump has vowed that this list of 21 judges is “definitive” and that “[he] will choose only from it when picking future justices,” making sure not to leave any ambiguity for fellow Republicans.
With Republicans controlling both the House of Representatives and the Senate, only one barrier comes to mind in stopping Mr. Trump from seating a conservative justice of his choice: the filibuster, a feature of the Senate that allows the minority party to extend debate and blockade votes as long as the majority is weaker than 60 votes (Republicans currently have 51). This may seem like an obvious threat to Senate Republicans, but according to a recent summer interview between the heads of the Senate and the Economist, this last line of resistance will be removed “no matter which party takes the majority after the November election.” The interview implied that if ANYONE tries to filibuster the nominee, the result would be a use of the “nuclear option,” a procedure whereby the majority of the Senate can override a rule by a simple majority. Democrats used this option in 2013 to require only a simple majority vote to end filibuster of specific executive and judicial nominees rather than the 60 that was previously required. Republicans could now do the same for Supreme Court nominees if they choose.
With their effective 10-month protest of Judge Merrick Garland now looking like an exceptionally planned move to conserve over five decades of conservative tilt on the Supreme Court, Senate Republicans will have no reason to bend to a senate rule that incapacitates their new president. It is expected that the filibuster will dissolve and Mr. Trump will have his way with the vacant seat — one way or another. Obviously, it will still be a difficult task to do since Democrats in Congress will fight him every step of the way, but if Republicans manage to succeed, the Supreme Court will once again tilt right and could stay that way if a second nomination goes through.
With a full-on conservative Supreme Court, an already conservative jurisprudence will deepen and possibly even broaden. Areas that were out of reach for the past decade such as abortion and affirmative action could be in for another round of court cases. The most recent case on abortion took place in Texas, where the court ruled 5 to 3 in favor of abortion. Justice Kennedy’s vote was the crucial one, joining the court’s liberal side. This was the only case in which he had found an anti-abortion law unconstitutional in his 3 decades on the Court. On affirmative action, a similar scenario appeared. In June, the court ruled 4 to 3 in favor of race conscious admissions at the University of Texas. Justice Kagan recused herself from the case due to previous involvement, although, based on her track record, she would’ve supported the pro-affirmative action ruling.
Along with these cases, Mr. Trump is likely to use his executive power to undo the President Obama’s approach to transgender rights, and clashes between prominent religious beliefs and contraception coverage, basically extricating any pending challenges in the courts. If Mr. Trump manages to nominate 1-3 justices, many precedents will be overturned, and the recent abortion and affirmative action cases will be on the chopping block as well. In the end, having one justice will tip the scale on many issues, and with two, there will be no stopping the conservative Supreme Court.