Election Day wasn’t just about the presidency. The election of Donald Trump and a Republican majority in the Senate likely means a conservative majority will dominate the U.S. Supreme Court for decades.
“He could have two or three appointments to the Court in the next four years,” said Jeffrey Lax, a professor of political science who specializes in judicial politics, the U.S. Supreme Court in particular. He notes that Justice Ruth Bader Ginsburg (LAW’59) is 83 and Anthony Kennedy is 80. “Four years is a long time,” said Lax.
A conservative Supreme Court, working with a Republican Congress, will have a lasting impact on America, said Lax, noting a number of potential, sweeping changes. The Affordable Care Act, upheld by the Court in 2012, likely will be repealed and the Court’s 2015 ruling in favor of same-sex marriage could be overturned, returning the issue to the states. A decision in 2013 that effectively gutted the 1965 Voting Rights Act will have an impact on future elections if conservative justices reject individual cases claiming voter suppression.
Lax thinks the deepest core of Roe v. Wade, the 1973 decision upholding a woman’s right to have an abortion, is safe, at least as long as no one else leaves the Court. But he added, “A lot of it has been carved away over the years. Even now, Roe has been deeply wounded in practical effect.” The Court also recently agreed to hear a case involving transgender rights, which likely won’t be heard until there is a ninth justice. Extension of such rights seems unlikely, said Lax.
Most likely, Trump’s first action regarding the Court will be to nominate someone to fill the seat that has been vacant since the February death of Justice Antonin Scalia, the fifth member of what was a conservative majority. “This could be something he uses to play nice with the Republican establishment or he could use it to poke at the establishment,” said Lax. “I don’t know what to expect.”
The list of potential nominees Trump released during the campaign included conservative judges and Senators—even one who didn’t endorse him—but didn’t list any of the expected names.
Merrick Garland, whose nomination last spring by President Barack Obama (CC’83) was blocked by a Republican majority in the Senate, now is expected to remain a justice in the U.S. Court of Appeals for the District of Columbia Circuit.
Partisanship drives Senate votes on Supreme Court nominees in two ways, Lax said. Republicans tend to vote for a Republican president’s nominees while Democrats vote against them and vice versa, but Senators also view public opinion through a partisan lens— really listening only to the opinions of constituents from their own party.
Lax said his research has shown that Republican Senators are far more likely to listen to their more conservative constituents than to the average voter in their state. “I don’t expect Republicans in Congress to be a meaningful check on Trump, even if their constituents as a whole want it,” said Lax.
There also are a number of vacancies on lower federal courts that Trump will be able to fill. After a rule change in 2013, those nominees can be confirmed by a majority vote. Supreme Court nominees still require breaking any filibuster with 60 votes. Although Democrats will have 48 votes in the new Senate, it will be hard for them to block Trump nominees, said Lax.
“If they try to filibuster a nominee, Republicans will end the filibuster and just require a majority vote,” he said. But replacing Scalia with another conservative doesn’t mean the Court will act exactly as it did before.
“You’ll get someone whose thoughts about legal rules will interact in complicated ways with the other justices’ thoughts,” said Lax. “It’s not like you’re replacing Scalia with a clone.”
—By Georgette Jasen