Jennifer Hepner
COL 2020
Trump’s election to the oval office came as a major shock to most of the nation. With the recent death of Supreme Court Justice Antonin Scalia and the pending retirement of Justices Ruth Bader Ginsburg, Stephen G. Breyer, and perhaps even Anthony B. Kennedy, president-elect Donald Trump now holds the responsibility of appointing at least three new justices to the Supreme Court within his next four years in office. It is clear that the Supreme Court will shift further right than its present standing, inciting fear in liberals and national angst about the future of our judicial system.
It is likely that Trump will fill all vacant seats with justices who are more conservative than Trump himself, ultimately preserving the right-tilting Supreme Court as it has been for decades. While liberals are optimistic that a conservative court will act as a restraint on Mr. Trump’s ambitions, many are concerned about safety rights such as abortion and affirmative action [1].
For example, the Supreme Court struck down a restrictive Texas abortion law in June by a 5-to-3 vote. This decision, the most sweeping statement on abortion since Planned Parenthood v. Casey in 1992, which reaffirmed the constitutional right to abortion established by Roe v. Wade in 1973, declared unenforceable a law that would have significantly reduced the number of abortion clinics in Texas, leaving them only in large urban centers [2]. If Trump appoints just one new justice who opposes abortion rights, the tally would not yet tip all the way, but the court would be close in its decision. An additional appointee could tip the scale to a majority pro-life court that would certainly be resistant toward abortion rights.
Affirmative action seems safe for now as well, as the court upheld a race-conscious admissions program at the University of Texas by a 4-to-3 vote in 2016. The unexpected decision in this case, Fisher v. University of Texas, allowed admissions officials to continue to use race as one factor among many in creating a diverse student body [3]. Again, a single appointee would not tip this scale, but two or three could certainly change the legal status of race-conscious admissions programs at universities across the country.
In the long term, it is possible that any of Trump’s potential appointees would be more willing to enforce limits on congressional and presidential power than even the late Justice Scalia. Additionally, many younger conservatives that Trump has been considering for the appointments support a position of judicial engagement rather than deference to the political branches [4]. A conservative majority might also restrict the authority of federal agencies and could potentially vote to repeal or revise Obama-era regulations on climate change, health care, consumer protection, and Wall Street. This could also result in legislation that would repeal key parts of the Affordable Care Act and Dodd-Frank [5].
If Justices Ruth Bader Ginsburg or Stephen Breyer step down within the next four years, it is likely that we will see a 6-3 conservative majority on the court for the first time since the 1930 [6]. This majority could have even more dramatic effects than a 5-4 court; it could ultimately cut back on abortion rights and eventually strike down Roe v. Wade, which Trump even said in the third presidential debate, “will happen, automatically [7].” It could cut back on the wall between church and state, permitting greater government support for public displays of religion, and it could approve stop and frisk and electronic surveillance policies that Trump has supported [8].
Ultimately, the Supreme Court only handles about 70 cases a year, meaning that in the short term, the lower federal courts, which are currently dominated by Democratic appointees, may still see lasting liberal victories in cases that will never make their way to the Supreme Court [9]. In the end, it is likely that any of Trump’s conservative constitutionalist appointees will impose at least some limits on congressional and executive actions, and for this reason, a Trump Court might ultimately be our greatest protection against any constitutional excess of his presidency [10].
Notes
[1] Liptak, Adam. “What the Trump Presidency Means for the Supreme Court.” The New York Times. The New York Times, 09 Nov. 2016. Web. 29 Nov. 2016.
[2] Liptak, Adam. “Supreme Court Strikes Down Texas Abortion Restrictions.” The New York Times. The New York Times, 27 June 2016. Web. 29 Nov. 2016.
[3] Liptak, Adam. “Supreme Court Upholds Affirmative Action Program at University of Texas.” The New York Times. The New York Times, 23 June 2016. Web. 29 Nov. 2016.
[4] Liptak, Adam. “What the Trump Presidency Means for the Supreme Court.”
[5] Rosen, Jeffrey et al. “How President Trump Could Reshape the Supreme Court—and the Country.” POLITICO Magazine, 13 Nov. 2016, www.politico.com/magazine/story/2016/11/donald-trump-wins-supreme-court-214449
[6] Id.
[7] Id.
[8] Id.
[9] Liptak, Adam. “What the Trump Presidency Means for the Supreme Court.”
[10] Rosen, Jeffrey et al. “How President Trump Could Reshape the Supreme Court—and the Country.”
