Thursday, January 19, 2017


The Supreme Court operates in counterpoint to the rest of the government. The Justices do not initiate; they respond. Every major political issue of the day eventually winds up in their courtroom, and they either embrace or resist what’s happening in the rest of the world. When Franklin D. Roosevelt pushed the New Deal through Congress, the conservatives on the Court, for a time, fought him to a standstill. When the civil-rights movement gathered steam, the Justices gave first a hesitant and then a fuller endorsement of the cause. But resistance from the Justices never lasts too long. The truism that the Supreme Court follows the election returns happens to be true. Elections have consequences.

For the past eight years, the Court has been called upon to respond to President Obama’s agenda. In certain crucial ways, a majority of the Justices have upheld the work of the Administration, most notably in two cases that posed existential threats to the Affordable Care Act. In other cases, the Court has rebuked the President. In Burwell v. Hobby Lobby, the Court rejected the Administration’s view that the A.C.A. required closely held corporations to subsidize forms of birth control that the owners opposed on religious grounds. Over all, the Court has reflected the fierce partisan divisions in the country. Conservatives won many cases (striking down campaign-finance regulations and gutting the core of the Voting Rights Act), while liberals won others (expanding gay rights and reaffirming abortion rights). The Trump Presidency will shape the Justices’ work even before they decide a case. If Trump succeeds in overturning the Affordable Care Act, the Court’s two landmark endorsements of that law, in 2012 and 2015, will become nullities, like rave reviews of a closed restaurant.

George W. Bush, the previous Republican President, had to wait until his second term to make his first appointment to the Supreme Court. Trump will have a vacancy to fill as soon as he takes the oath of office. Antonin Scalia died in February, but Mitch McConnell, the Senate Majority Leader, decreed that the seat would be held open, to be filled by the next President. The voters mostly ignored this brazen defiance of institutional norms, but its consequences, as McConnell intended, have been enormous. In an unusual move for a Presidential candidate, Trump released a list of twenty-one people whom he might consider as nominees. The list includes some curiosities, such as Mike Lee, the senator from Utah (who revealed, the morning after the election, that he had voted for the Independent Evan McMullin), and Margaret Ryan, who serves on the United States Court of Appeals for the Armed Forces. But most are Republican appointees to the federal courts of appeal or state supreme courts, and all appear to be strongly conservative in outlook. If one is nominated and confirmed, the new Justice will probably vote much as Scalia did. McConnell’s blockade prevented the creation of the first liberal majority since the Nixon Administration. Instead, there will be a conservative majority of five Justices, with Anthony Kennedy occasionally and John Roberts rarely voting with the liberals.

Confirmation of any Trump nominee should be a mere formality. When Hillary Clinton appeared to be the likely winner, several Republican senators suggested that they would keep Scalia’s seat open throughout her term; eight Justices were enough for them. Democrats take a more genteel approach to judicial confirmations of nominees from the opposition party. At confirmation hearings, the senators from the Democratic minority will doubtless ask the nominee a series of questions about such issues as gay rights, Roe v. Wade, and the Citizens United case, regarding campaign finance. The nominee will answer with generalities and evasions. Trump’s party narrowly controls the Senate, but any Republican defections on a matter of this magnitude are unlikely. Democrats have never mounted a successful filibuster against a Republican Supreme Court nominee, and McConnell would probably abolish the practice if they even tried. So Trump will have his Justice in short order.

The new Court will then begin confronting the Trump agenda. Two issues are likely to stand out. In the period leading up to the 2016 election, Republican-dominated state legislatures passed a series of voter-suppression initiatives, including photo-identification requirements and limitations on early voting and absentee voting. (These efforts may have limited Democratic turnout in several battleground states, including Wisconsin, Ohio, and North Carolina.) Some lower federal courts, especially those with judges appointed by President Obama, began interpreting what was left of the Voting Rights Act as justification for curtailing these practices. A conservative majority on the Court would likely give the states a free hand, which would allow them to enact even greater restrictions.

The other area is immigration. Trump made the building of a wall along the Mexican border and the eviction of roughly eleven million undocumented immigrants the centerpiece of his campaign. He has not detailed how he plans to round up so many people, but he will surely tighten immigration enforcement; just as surely, the targets will turn to the courts for relief. Undocumented immigrants by definition enjoy fewer rights than citizens, and their fate is likely to become a defining issue for the new Court.

Looking farther ahead involves playing a high-stakes game of actuarial roulette. The Court’s senior liberals, Ruth Bader Ginsburg and Stephen Breyer, are eighty-three and seventy-eight, respectively; Kennedy is eighty. The chances for dramatic change on such issues as abortion rights and affirmative action hinge on their continued service. The one certainty about the Court is that it never stands in the way for long. In broad terms, it reflects the political tenor of its era. If Trump and the ideological tendency he represents remain ascendant, the Court will mirror those views, too, and probably sooner rather than later. Presidents shape Supreme Courts, not the other way around, and it is Donald Trump’s turn now.

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