What immediately crossed my mind with Donald Trump’s stunning upset victory was not what this would mean for Obamacare, bank regulation, our global alliances, or whether the United States will impose a 45 percent tariff on China-made goods or even build a wall across our border with Mexico. I thought of the US Supreme Court. A Court seat has been empty since the death of rock-ribbed conservative Justice Antonin Scalia last February since the Republican Senate refused even to hold hearings on Obama’s nominee, Merrick Garland.
Currently there are four conservatives and four liberals left on the Court. Ginsburg, the eldest, is 82; Kennedy, 80; and Breyer, 78, the average retirement age for justices. Many have criticized Ginsburg for not retiring earlier so that Obama could have appointed Garland or a younger justice in her stead, and the ideological structure would be preserved. With three additional vacancies possibly created by the retirement of the elder justices, Trump’s appointments in the next four years may well shape constitutional law for a generation.
As Governor of Indiana, Vice President-elect Mike Pence was so enamored of Scalia, who died last February, that he renamed an interstate highway I-69 the “Antonin Scalia Throughway.” In accepting Trump’s designation as his running mate, Pence said: “And where Donald Trump will appoint justices like the late Antonin Scalia, who will uphold our Constitution, Hillary Clinton will appoint Supreme Court justices who will legislate from the bench, abandon the sanctity of life, and rewrite our Second Amendment,” as though the conservative justices did not “legislate from the bench” in the Shelby County voting-rights case and the campaign-finance case Citizens United, which both Hillary Clinton and Bernie Sanders vowed to overturn.
Pence’s “sanctity of life” pledge, echoed repeatedly by Trump in the course of the campaign, was to fill Scalia’s seat with a doctrinaire conservative who would, among other things, strike down Roe v. Wade (Trump in the debates said his appointee would do so “automatically”), and resist any legislative crackdown on private ownership of guns, even semi-automatic weapons, such as those used in the San Bernardino terrorist attack. The Supreme Court in the Heller case, decided in 2008 when Scalia was active, held that the Second Amendment “right to keep and bear arms” clause provided an unfettered right to own a handgun in your home. As Scalia saw it, was the understanding in 1791 when the Second Amendment was ratified. Assault weapons the Court left to future consideration when the appropriate case arises.
As I have written in my new book, Supremely Partisan—How Raw Politics Tips the Scales in the United States Supreme Court, the Court became intensely politicized with the appointment of Justice Scalia in 1986, and when it comes to hot-button issues such as guns, gays, God, and abortion (not to mention voting rights, campaign finance, affirmative action, and even the election of the president) the nine-member bench frequently breaks down neatly 5-4 along partisan lines.