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Thursday, November 10, 2016

Trump's Presidency and the Supreme Court

Cass Sunstein has this interesting article at Bloomberg View. Sunstein begins by correctly noting that even though Trump will appoint Justice Scalia's successor, this will leave the Court's current ideological balance unchanged. Sunstein then addresses the possibility of Trump replacing one or more of the Court's liberal justices (he mentions Justices Ginsburg and Breyer -- I would add Justice Kennedy in light of his role in recent gay rights and abortion decisions). On that topic, Sunstein writes:

Suppose, though, that one of them does resign. At that point, significant changes would be possible. But probably not many. 
One reason involves the idea of respect for precedent. The justices are usually reluctant to disturb the court's previous rulings, even if they disagree strongly with them. In this light, would a new majority really want to announce in, say, 2018, that states can ban same-sex marriage, after years of saying otherwise? That’s unlikely: Such an abrupt reversal of course, defeating widespread expectations, would make the law seem both unstable and awkwardly political. 
Would a Trump court want to overrule Roe v. Wade, which has been the law since 1973, and thus allow states to ban abortion? Considering the intensity of conservative opposition to abortion, that is somewhat more probable. But judges are not politicians, and again to avoid the appearance of destabilizing constitutional law, any majority would hesitate before doing something so dramatic. 
Would a court composed of Alito, Roberts, Kennedy, Thomas, and one or two Trump appointees be willing to grant broad new powers to the president? No chance. The current conservatives have expressed a great deal of skepticism about executive authority. They aren’t going to turn on a dime merely because the president is a Republican. 
There is a more general point. Many judges (and Roberts in particular) are drawn to “judicial minimalism”; they prefer to focus on the facts of particular cases. Quite apart from respecting prior rulings, they like small steps and abhor bold movements or big theories.
I agree with portions of Sunstein's analysis. Sunstein's point on respecting precedent is a good one, and is bolstered in the abortion context by the Court's 2016 decision in Whole Woman's Health v. Hellerstedt, a 5-3 decision striking down Texas laws restricting abortion. While two Trump appointees would likely leave the balance of the Court opposed to the Whole Woman's Health decision, a change of course this soon after the Court's ruling would indeed appear dramatically political.

This point about precedent may not hold up in the context of affirmative action, however. The most recent Fisher v. University of Texas case that upheld the University of Texas's affirmative action program was a 4-3 decision, and therefore rested on the opinion of a minority of the nine justices that typically sit at the Supreme Court. Commentators are quick to point out that Justice Kennedy authored the opinion and that Justice Kagan, who was recused, would have brought the majority's total to five justices. But these observations do not affect the fact that the majority consisted of only four justices. Should the Court revisit affirmative action with two Trump appointees replacing any one of Justices Ginsburg, Kennedy, or Breyer, the Court may likely to overrule its prior 4-3 decision with a new 5-4 decision restricting affirmative action.

As for Sunstein's point about incremental change, while he may well be correct, this will probably do little to appease those who wished to see a liberal shift in the Supreme Court. Even if the Court takes the minimalist approach that Sunstein describes, the incremental shifts will likely be to the right, rather than the substantial shifts to the left that liberals were hoping to see under a Clinton presidency.

Finally, to take a brief step into the uncertain and unpleasant world of political prognostication, many commentators expect that Trump will have the opportunity to replace Justice Ginsburg in addition to appointing Justice Scalia's successor, as she is now 83 years old and is unlikely to remain on the Court for four more years. Democrats, however, will likely begin to operate under a time frame of two, rather than four, years as Trump's presidency begins and as his Court begins to take shape. If Democrats manage to mobilize in 2020, they may take back the Senate. Once they have done so, they may well adopt the Republican tactic of refusing a hearing should any seats open up on the Supreme Court. While such an approach would represent a reversal of position for Democrat's who condemned Senate Republicans' refusal over the past many months, they would likely accept this inconsistency in favor of the influence that such a refusal could have on the Court.

I do not like the approach I described above -- whether it is practiced by Republicans or Democrats. But 2016 ushered in a new level of political combat over Supreme Court appointments, and I do not expect these political precedents to be overturned anytime soon.

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