The political earthquake that hit Tuesday night has enormous consequences for the Supreme Court, swallowing up Judge Merrick Garland’s ill-fated nomination and dismantling Democratic hopes for a liberal majority on the high court for the first time in nearly a half-century.
In the short term, Republican Donald Trump’s victory means that at some point next year, the nine-member court will be restored to full capacity, once again with a majority of Republican-appointed justices.
Democratic attempts to filibuster Trump’s choice would likely lead Republicans to end that option for Supreme Court justices, just as Democrats did for other judicial nominations when their party controlled the Senate.
Trump’s upset victory likely changes the court’s docket as well: Court challenges to President Barack Obama’s regulations regarding the Affordable Care Act and immigration, which have preoccupied the justices in recent terms, will likely disappear under a President Trump and a Republican-controlled Congress.
The long-term question will be Trump’s ultimate impact on the court’s membership, and whether he gets the chance to do more than choose the successor to Justice Antonin Scalia, who died in February.
Two of the court’s liberals, Justices Ruth Bader Ginsburg and Stephen G. Breyer, are 83 and 78, respectively. Moderate conservative Justice Anthony M. Kennedy is 80.
As long as those three stay, the court’s rulings on sensitive social issues – protecting abortion rights, affirmative action and gay rights, for instance – are secure.
“A lot of the big things are actually ones on which the court already has a so-called liberal majority,” Neal K. Katyal, the acting solicitor general under President Obama, said before the court’s term began last month.
Tuesday’s election assures that Kennedy will remain the court’s pivotal justice, for now. Trump has said he will draw his Supreme Court nominee from a list of 20 judges and one senator: Mike Lee of Utah. All appear to be more conservative than Kennedy, the court’s longest-serving justice.
Kennedy is the member of the current court most likely to be in the majority when the court splits 5 to 4 in its most controversial decisions. Most of the time, he sides with Chief Justice John G. Roberts Jr. and the court’s other remaining conservatives: Justices Clarence Thomas and Samuel A. Alito Jr.
But on some social issues, Kennedy sides with the liberals: Ginsburg, Breyer and Obama’s two choices for the court, Justices Sonia Sotomayor and Elena Kagan.
He joined them and wrote the majority opinion finding that gay couples have a constitutional right to marry; in fact, Kennedy has written all of the court’s cases protecting gay rights.
Last term, he wrote the decision approving the limited use of race in college admission decisions, and voted to strike down a Texas law that the court said imposed unnecessary burdens on a woman’s right to obtain an abortion.
But three of the five justices supporting those issues are the oldest on the court. Abortion rights advocates immediately sounded an alarm.
“President-elect Trump has publicly pledged to overturn Roe and promised punishment for the one in three American women who will have an abortion in her lifetime,” said Nancy Northup, president of the Center for Reproductive Rights. She was referring to Roe v. Wade, the Supreme Court decision assuring a woman’s right to an abortion
Garland, a moderate liberal who is chief judge of the U.S. Court of Appeals for the D.C. Circuit, would likely have replaced Kennedy as the justice in the middle. Obama nominated him last March in part because Republicans in the past have said he was the most likely Democratic nominee to win confirmation.
But Senate Majority Leader Mitch McConnell, R-Ky., declared on the night of Scalia’s death that Republicans would not act on any Obama nominee. The move brought charges that McConnell had politicized the process, but the gambit worked: It will now be a Republican president making the lifetime appointment to replace Scalia.
Trump has said his nominee will come from the list compiled with the help of the Heritage Foundation, a conservative think tank, and the legal group, the Federalist Society. His nominee will be like Scalia in seeking to overturn Roe and be a strong supporter of the Second Amendment, Trump has said.
All eyes will now be on the court’s oldest members, Kennedy and Ginsburg. Replacing Kennedy with a more stalwart conservative would immediately impact the court’s dynamics. He has given no indication about how long he intends to serve on the court.
Ginsburg has said she will serve as long as she is up to the job. She would likely be loath to allow Trump to pick her successor; she caused an uproar this summer when in media interviews she called him a “faker” and said she feared for the court and the country if he were elected.
Ginsburg turned aside calls from some liberals that she retire years ago, so that Obama could name her replacement. She said it was unclear whether the Senate would confirm her successor. And she told The Washington Post that there was no rush: She felt it was likely that another Democrat would be elected after Obama.
(c) 2016, The Washington Post · Robert Barnes