On the day after America voted, one thing is all but certain about the Supreme Court, and a second thing is highly probable. What is close to a certainty is that President Obama’s nominee to the existing vacancy on the ourt, Circuit Judge Merrick B. Garland, will not become a Justice. What is probable is that Justice Anthony M. Kennedy’s already powerful presence on the Court will become even greater, over the next several years.
What those two prospects suggest is that there is not going to be a sudden shift in the Supreme Court’s most significant actions as a result of the voters’ choice of Donald J. Trump as President-elect. And they suggest that the transition to a truly different Court may not come until after the congressional elections in 2018, or even later, although that depends on the health of the more senior Justices now serving.
The death of Justice Antonin Scalia last February 13 created the current vacancy, and the political choice of the Senate’s Republican leadership has now saved the chance to replace him to the next occupant of the White House, Donald Trump.
With the voters returning the Republicans to control of the Senate, there is now no chance that the GOP leadership of that body would move forward with any action on Judge Garland’s nomination. It will be sent back to the White House at the close of this year’s congressional session.
Those GOP leaders know that the vacancy on the Court was an issue for many of their party’s followers (more than 50 percent of those who thought the Supreme Court was the most important issue in this year’s presidential campaign told pollsters on Tuesday that they had voted for Trump, and most of those almost certainly were Republicans). It would be politically very risky to let the Garland nomination proceed.
President Obama would have the option of placing Garland on the Supreme Court with a recess appointment soon or even as late as the closing weeks of his presidency in January, but the President on Wednesday promised he would do all he could to make the transition of power in the presidency as smooth as possible, and such an appointment would surelv violate that spirit.
There is no way to know at this point when, after inauguration on January 20, that Donald Trump would send a nominee to the Senate, and what kind of qualifications or judicial philosophy such a nominee might have. If hints out of his campaign are any guide, it would be someone with a demonstrated record of legal conservatism.
But keep in mind that there are four reliably liberal Justices on the ourt now, and they are fairly often quite capable of drawing the support of Justice Kennedy to make a majority of five on some highly contentious issues. Those other four are Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sottomayor.
So, for example, on three issues that almost surely were in the minds of Republican voters (and leaders), a majority including Kennedy would almost predictably keep intact same-sex marriage rights and abortion rights, and allow state and local governments to continue to experiment with gun control without running afoul of the Second Amendment.
Kennedy may also provide the liberals with a majority if the Court, as seems likely, moves to institute more constitutional reforms in criminal law, particularly on solitary confinement and on matters of the constitutional rights of juvenile offenders.
Much of Justice Kennedy’s constitutional record is based upon his strong commitment to the idea that the most important value is the protection of human liberty, and that has led him to join in some of the Court’s most far-reaching human rights decisions. There is no prospect that he would change on that.
A strongly conservative new Trump nominee, if approved by the Senate, would add a fourth vote to that bloc on the Court. The other three are Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Clarence Thomas. That bloc, of course, would be able to draw the fifth vote of Kennedy on some issues. That bloc, for example, would probably keep fully intact the First Amendment rights of corporations and rich people to spend lavishly on federal election campaigns.
Another issue on which that bloc, with Kennedy included, might control the court would be to resist the new movement to confer public rights on transgender people. Kennedy already has joined in blocking a lower court ruling in favor of those rights, and he almost certainly was one of the Justices who voted to grant full review of that lower court decision.
It is often said, around the court, that every new Justice results in the creation of a “new” Supreme Court. Each individual who is added to the bench does add a new dimension to a Court that does almost all of its most important work with all nine Justices taking part, rather than in smaller panels. So, a new Trump nominee who had good leadership skills and a firm devotion to conservative principles would be adding a potentially influential new voice. But, with the continued presence of Justice Kennedy as a true “swing vote,” that new nominee would have to acquire some influence with Kennedy.
As of now, there is no sign that any of the current Justices would be leaving the court in the next couple of years, if their health holds up. Justice Ginsburg is the oldest, at age 83; Justice Kennedy will be 80 in July, and Justice Breyer will be 78 in August. The other five Justices are all no older than 68, and some are considerably younger than that. While Justice Ginsburg has had a series of illnesses, her health now appears to be robust, and there have been no signs of serious illness for Justices Kennedy or Breyer.
The Republicans will have control of the Senate for at least the next two years, so they could work with the new President Trump to approve a nominee, but only if a vacancy were to occur; no one can be forced off the Court. Not all Justices who choose to retire from the Court have done so based on the political party of the President or Senate that would act on a successor, but that is not unheard of.
Justices Ginsburg and Breyer were nominated by Democratic presidents, and Justice Kennedy by a Republican. With Kennedy’s influence almost sure to grow, he would not be expected to voluntarily step down in the next two years.
There is no realistic chance that the Democrats would regain control of the Senate in the 2018 elections, because 23 of the seats now held by Democrats and two held by independents who vote with the Democrats will be up for election two years from now, compared to only eight seats now held by Republicans. Almost certainly, the GOP will strengthen its hold on the Senate after the 2018 election.
That may be the point at which a President Trump might have an opening to fill that would probably tip the balance of the Court to the more conservative side.
(NOTE: This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)