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.
Scalia was a textualist and an originalist. He believed that the judge must start with the text, and interpret its meaning in accordance with the original understanding of the 2 million members of the 18th-century American society for whom the words were written.
He abhorred the idea of a “living Constitution,” followed by the liberal wing of the Court, led by Ruth Bader Ginsburg. He used to say, “dead, dead, dead” in explaining his opposition to the notion that there are “new rights” found in the fabric of the Constitution that evolve and become visible in the course of time. Thus, his interpretation, for example, that capital punishment of minors was constitutional under the Eighth Amendment’s “cruel and unusual punishments” clause because the society executed minors for capital crimes in the 18th century. Fortunately, his view did not prevail, and the Court in 2005 decided 5-4 to prohibit the execution of juveniles.
During the campaign, Trump furnished a list of 21 judges, with experience in either the state or federal courts, from which he would nominate the next justice, who will presumably be a Scalia clone. With control of the Senate narrowly remaining with the Republicans, his nominee should sail through, unless the Democrats launch a filibuster, as some Republican senators vowed to do if Hillary was elected. The Trump list consisted of conservatives in the Scalia mold. One of them on the shortlist is Bill Pryor of Alabama, a Catholic federal judge on the Court of Appeals for the 11th Circuit, had publicly stated that he viewed Roe v. Wade as an “abomination.” Another on Trump’s most recent shortlist, Republican Senator Mike Lee of Utah, said he wasn’t supporting Trump, and wasn’t interested in the job. The others were a number of state and federal judges included a few women and minority candidates. They all appeared to come from “swing states” that Trump thought he had to win in an eventual presidential victory. Conspicuously absent was Judge Brett Kavanaugh of the DC Circuit, a highly respected conservative appellate jurist. Trump knew that the District of Columbia would vote overwhelmingly for Clinton.
The addition of a “Scalia clone” is not particularly worrisome, as the 5-4 ideological divide will be continued. The real game-changer is that if three additional liberal and moderate vacancies occur in the next four years, including Anthony Kennedy who often votes with the liberals on abortion and gay-rights issues, the Court could stand 7-2 conservative for decades to come, with Sotomayor and Kagan being the lonely guardians of a “living Constitution.”
Trump’s announced policies may well present challenges to the Court—even to conservative Justices whom he appoints. Many of his stated policy proposals are plainly unconstitutional, such as compromising the national debt, allowing public officials more easily to sue for libel, deporting natural-born American citizens because their parents are undocumented, waterboarding, summarily executing a soldier for a desertion he is not even charged with, excluding Muslims from the country, abridging their civil liberties, and heightened surveillance of suspected terrorists. Only a strong Supreme Court will stand between this authoritarian figure and the erosion of well-settled constitutional rights.
If there is generalization that may be said of Donald Trump, it is that he is unpredictable in word and deed. He has no obligation to nominate a justice from his list of 21. He could nominate Ted Cruz or even, as a gesture towards unity, Barack Obama. We will have to see whom President Trump decides to add to the judicial stew before drawing any definite conclusions. All we can say is that the Supreme Court is the last word on the meaning of the Constitution, which Trump will swear to “preserve, protect, and defend.” Much is at stake in the next four years in terms of our basic freedoms.