What a Trump Win Would Mean for the Supreme Court
Published October 19, 2016
Nominating Supreme Court Justices is one of the most enduring actions a President can take. Often these lifetime appointees serve decades longer than the President who put them on the bench, interpreting our Constitution and serving as the final arbiter of U.S. law for many years to come. With the unexpected death of Supreme Court Justice Antonin Scalia in February and Senate Republicans’ refusal to hold a hearing on President Obama’s nominee to replace him, it is likely that the next President will appoint at least one and perhaps several Justices to the highest Court in the land. His or her nominees will reshape the balance of the body that defines the scope of our Constitutional rights—including the rights to bear arms, to have an abortion, and to receive equal protection under the law.
Donald Trump has been clear that, if elected, he plans to actively reshape the Supreme Court in ways that would have a monumental impact on the lives of all Americans. And given the broad power the President has to nominate Justices, he could do serious and lasting damage—even in a single term.
If elected, Trump would likely nominate several Justices.
While both presidential candidates have stressed the importance of selecting a replacement for conservative firebrand Justice Scalia, the next President’s impact on the Court is unlikely to stop there—or to be limited to only replacing conservatives. Justice Ruth Bader Ginsburg, who has long pushed back against rumors of her retirement, has said, “It’s likely that the next president, whoever she will be, will have a few appointments to make.”1 And if history is a guide, she is right: Since Ronald Reagan’s presidency, every President has nominated two or three Justices to the Court—even George H.W. Bush, who only served a single term.2
The average age at which a Justice retires is 78.7 years old, and by the end of the next President’s first term, Justices Ginsburg, Anthony Kennedy, and Stephen Breyer will be 87, 84, and 82 years old, respectively.3 Those three Justices represent two reliable liberal votes and the all-important swing vote on the Court, and if they retire, whoever the next President nominates to replace them could define the outlook of the Court for the next 30 years.
Trump’s nominees would drastically reshape the Court.
Donald Trump, down in the polls and dogged by controversy, has been counting on the importance of judicial nominations to bring conservatives to the polls, attempting to woo those on the right by saying, “Even if you can’t stand Donald Trump, you think Donald Trump is the worst, you’re going to vote for me. You know why? Justices of the Supreme Court.”4
Trump has promised to “appoint judges very much in the mold of Justice Scalia,” and, unlike most presidential candidates, he has committed himself to a variety of explicit litmus tests by which he says he will test nominees—including expanding gun rights, broadly defining religious liberty in the vein of the Hobby Lobby decision (which allows for-profit employers to deny their employees insurance coverage for contraception), and overturning Roe v. Wade.5
In his efforts to reassure Republicans that he will be a reliable nominator-in-chief, Trump has even taken the highly unusual step of publicly releasing two lists of names that he would consider as Justices were he elected. Many of these potential nominees were recommended to Trump by the Federalist Society (the conservative brain-trust on judicial nominees) and socially-conservative Heritage Foundation, and they hold views well outside the judicial mainstream. Some highlights include:6
- U.S. Senator Mike Lee (R-UT), a member of the Tea Party who believes Social Security, Medicaid, the Affordable Care Act, and laws that prohibit child labor are unconstitutional.7 As a Senator, Lee opposed expanding background checks for gun sales on the grounds that doing so would “allow the federal government to surveil law-abiding citizens who exercise their constitutional rights.”8
- 11th Circuit Court of Appeals Judge William Pryor, who has called Roe v. Wade “the worst abomination in the history of constitutional law,” and compared gay and lesbian relationships to necrophilia, bestiality, and pedophilia.9 He believes the federal government should play no role in public education and voted against hearing a case that would have challenged a state ban on gay people adopting children.10
- 7th Circuit Court of Appeals Judge Diane Sykes, who wrote the broadest repudiation of the Affordable Care Act’s requirement that employer health insurance plans cover contraception—which she refers to as “abortifacient drugs.”11 She also ruled in favor of a student organization that sued its university claiming a right to violate the school’s non-discrimination policy against LGBT students. That’s the opposite of the way the Supreme Court ruled in a similar case only a few years later.12
A Trump Supreme Court would rewind the clock.
If elected, Trump’s influence on the makeup of the Court could reshape the entire landscape of our nation’s laws. And he doesn’t need a record number of nominations to do it—the most contentious cases are almost always decided by a one-vote margin, including the recent cases that allowed gay and lesbian couples to marry, upheld the Affordable Care Act, and rewrote the rules on money in politics. Trump doesn’t just want to replace Justice Scalia with someone in a similar mold—he intends to remake the Court, describing his vision as one that is so conservative that “You won’t even have to question. You wouldn’t even have to bother going to court. You’re going to know the answer.”13 If Trump is allowed to nominate even just two Justices, the Supreme Court could overturn decades of settled law, including on critical issues that affect the daily lives of every American:
- Gun Safety: The last time the Supreme Court decided a major gun case, it restricted states’ ability to enact gun safety measures. Trump’s Supreme Court could go much further, including overturning state laws that protect certain gun-free zones like daycare centers and court buildings and require permits to carry concealed weapons, vastly expanding the scope of the Second Amendment.
- Abortion Access: In 2016 alone, 14 states passed 30 laws limiting abortion access—and because the right to abortion access is founded in the Constitution and defined by decades of Supreme Court precedent, the Court is the final adjudicator to determine which of these laws go too far.14 The most extreme of the new laws directly conflict with Roe v. Wade and were passed with the explicit goal of challenging it to give the Court an opportunity to overturn that decision. Since Trump is “committed to nominating pro-life justices to the U.S. Supreme Court,” he could make that day a reality, returning America to the days when states could enact total abortion bans.15
- Money in Politics: In 2010, the Supreme Court handed down an extremely controversial 5-4 decision in Citizens United, ruling that the First Amendment’s free speech provision prevents the government from restricting how much money outside groups can spend in elections, paving the way for a super PAC explosion. Based on the list of potential nominees he has released, a Trump-era Court would continue to strike down current and future laws that attempt to regulate the amount and influence of money in politics, ensuring that super PACs and dark money organizations can expand their reach in our elections even further.
- The Affordable Care Act (ACA): Twice the Supreme Court has narrowly refused to overturn the Affordable Care Act, the healthcare law that Trump has repeatedly called a “disaster.” In response to the Chief Justice upholding the law, Trump announced, “Justice Roberts really let us down,” saying, “What he did with Obamacare was disgraceful.”16 If elected, Trump would nominate Justices that would be willing to strike down the ACA, and they could have the chance to do so, since the law is still being challenged in court. Especially if Trump is facing a Democratic-led Senate that refuses to repeal the ACA legislatively, the Supreme Court would be his only chance to undo the law.
- Discrimination against LGBT Americans: When asked if he would nominate Justices who would overturn the 2015 case allowing gay and lesbian couples to marry, Trump responded, “I would strongly consider that, yes.”17 While it’s unlikely Trump’s Supreme Court would have the opportunity to confront a case on exactly that question, they could invite discrimination against LGBT people on a variety of fronts. The Court has already opened the door to for-profit employers refusing to follow laws based on their religious beliefs, and many of the judges on his list have previously ruled against laws that protect LGBT people. If even one or two of them were placed on the Court, the Justices could easily rule that for-profit companies can use a religious justification to fire LGBT employees even in states that protect them from discrimination, or that federal or state employees or businesses have a right to refuse to serve customers based on their sexual orientation or gender identity.
The next President’s expected influence on the Supreme Court is just one of the many reasons there is so much at stake in this election. A Court made in Donald Trump’s image could drastically shift our country’s future, upending bedrock Constitutional decisions and changing the ways in which our laws are interpreted for a generation.
“Donald Trump Says Supreme Court Justice Ruth Bader Ginsburg's 'Mind Is Shot’,” Fortune, July 13, 2016. Accessed October 17, 2016. Available at: http://fortune.com/2016/07/13/donald-trump-ruth-bader-ginsburg/.
United States, Courts, “Judgeship Appointments by President.” Accessed October 17, 2016. Available at: http://www.uscourts.gov/judges-judgeships/authorized-judgeships/judgeship-appointments-president.
Philip Bump, “Average Age of the Supreme Court is Close to a Record High,” Chicago Tribune, January 10, 2016. Accessed October 17, 2016. Available at: http://www.chicagotribune.com/news/nationworld/ct-supreme-court-justices-ages-20160110-story.html.
Reid J. Epstein, “Donald Trump Says Supreme Court Fears Will Keep Republicans Loyal,” The Wall Street Journal, August 2, 2016. Accessed October 17, 2016. Available at: http://blogs.wsj.com/washwire/2016/08/02/donald-trump-says-supreme-court-fears-will-keep-republicans-loyal/.
Sopan Deb, “Donald Trump's Supreme Court Litmus Test,” CBS News, February 17, 2016. Accessed October 17, 2016. Available at: http://www.cbsnews.com/news/campaign-2016-donald-trump-supreme-court-litmus-test/; See also “Trump Confirms He would Allow Bosses to Determine whether Women can Access Birth Control,” Planned Parenthood, February 25, 2016. Accessed October 17, 2016. Available at: https://www.plannedparenthoodaction.org/pressroom/press-releases/trump-confirms-he-would-allow-bosses-determine-whether-women-can-access-birth-control; See also “Donald Trump on CNN's State of the Union: ‘I'm in it to Win it... I will Make our Country Great Again’,” CNN, June 28, 2015. Accessed October 17, 2016. Available at: http://cnnpressroom.blogs.cnn.com/2015/06/28/donald-trump-on-cnns-state-of-the-union-im-in-it-to-win-it-i-will-make-our-country-great-again/.
Bob Woodward and Robert Costa, “In a Revealing Interview, Trump Predicts a ‘Massive Recession’ but Intends to Eliminate the National Debt in 8 Years,” The Washington Post, April 2, 2016. Accessed October 17, 2016. Available at: https://www.washingtonpost.com/politics/in-turmoil-or-triumph-donald-trump-stands-alone/2016/04/02/8c0619b6-f8d6-11e5-a3ce-f06b5ba21f33_story.html.
Ian Millhiser, “Trump’s New SCOTUS Picks Signals Willingness to Abolish Child Labor Laws, Medicare, Social Security,” Think Progress, September 23, 2016. Accessed October 17, 2016. Available at: https://thinkprogress.org/mike-lee-donald-trump-supreme-court-1bd71b76ea6f#.qa1artapl.
“Lee: Gun Proposals Limit Second Amendment Rights of Law-Abiding Citizens,” Transcript, Office of United States Senator Mike Lee, April 1, 2013. Accessed October 17, 2016. Available at: http://www.lee.senate.gov/public/index.cfm/2013/4/lee-gun-proposals-limit-second-amendment-rights-of-law-abiding-citizens.
Lawrence Hurley, “Trump's Supreme Court List: All Conservative, Some Provocative,” Reuters, May 20, 2016. Accessed October 17, 2016. Available at: http://www.reuters.com/article/us-usa-election-trump-court-list-idUSKCN0YA2XV; See also Alan Rappeport and Charlie Savage, “Donald Trump Releases List of Possible Supreme Court Picks” The New York Times, May 18, 2016. Accessed October 17, 2016. Available at: http://www.nytimes.com/2016/05/19/us/politics/donald-trump-supreme-court-nominees.html?_r=0; See also Meteor Blades, “If Trump Could Appoint Nine New Justices to the Supreme Court, These Would be They (Plus Two Spares),” Daily Kos, May 19, 2016. Accessed October 17, 2016. Available at: http://www.dailykos.com/story/2016/5/19/1528041/-If-Trump-could-appoint-nine-new-justices-to-the-Supreme-Court-these-would-be-they-plus-two-spares.
Meteor Blades, “If Trump Could Appoint Nine New Justices to the Supreme Court, These Would be They (Plus Two Spares),” Daily Kos, May 19, 2016. Accessed October 17, 2016. Available at: http://www.dailykos.com/story/2016/5/19/1528041/-If-Trump-could-appoint-nine-new-justices-to-the-Supreme-Court-these-would-be-they-plus-two-spares.
Lyle Denniston, “Broad Bar to Birth-Control Mandate,” SCOTUS Blog, November 9, 2016. Accessed October 17, 2016. Available at: http://www.scotusblog.com/2013/11/broad-bar-to-birth-control-mandate/; See also Irin Carmon and Zachary Roth, “Who Are These People? A Look at Donald Trump's Potential Supreme Court Picks,” NBC News, May 19, 2016. Accessed October 17, 2016. Available at: http://www.nbcnews.com/politics/2016-election/who-are-these-people-look-donald-trump-s-potential-supreme-n576446.
Ian Millhiser, “Three Republican Judges Just Gave A Big Leg Up To Scott Walker’s Reelection Campaign,” Think Progress, September 12, 2016. Accessed October 17, 2016. Available at: https://thinkprogress.org/three-republican-judges-just-gave-a-big-leg-up-to-scott-walkers-reelection-campaign-46f28d6749c8#.7jc1p0unx.
Tyler Pager, “Trump Breaks his Silence on Supreme Court Abortion Ruling,” POLITICO, June 30, 2016. Accessed October 17, 2016. Available at: http://www.politico.com/story/2016/06/trump-abortion-supreme-court-224984.
Amber Phillips, “14 States have Passed Laws this Year Making it Harder to get an Abortion,” The Washington Post, June 1, 2016. Available at: https://www.washingtonpost.com/news/the-fix/wp/2016/06/01/14-states-have-passed-laws-making-it-harder-to-get-an-abortion-already-this-year/.
Donald J. Trump, “Letter to Pro-Life Leaders,” September 2016. Accessed October 17, 2016. Available at: https://www.sba-list.org/wp-content/uploads/2016/09/Trump-Letter-on-ProLife-Coalition.pdf.
Shawn Johnson and Laurel White, “As Voting Begins, a Look Back at the Fight Over Wisconsin's Voter ID Law” Wisconsin Public Radio, September 26, 2016. Accessed October 17, 2016. Available at: http://www.wpr.org/voting-begins-look-back-fight-over-wisconsins-voter-id-law.
Cavan Sieczkowski, “Trump: I Would ‘Strongly Consider’ Appointing Judges to Overturn Same-Sex Marriage,” The Huffington Post, February 1, 2916. Accessed October 17, 2016. Available at: http://www.huffingtonpost.com/entry/donald-trump-marriage-equality_us_56af63c8e4b00b033aafb496.
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