The Trump Court: What’s Next for the Highest Court in the Land

Trump Supreme Court

Justice Scalia leaned to the right, so if Trump nominates (and the Senate confirms) a similarly conservative justice, “the doctrine won’t change that much,” Professor Patrick Wiseman said.

Donald Trump’s election as the 45th president of the United States came as a surprise to many. Regardless of one’s political leanings, most people agree that Trump has at least one important job to do, and he needs to do it soon.

Justice Antonin Scalia, a member of the Supreme Court since 1986, passed away in February of this year, leaving quite a conservative hole in the court. Mitch McConnell, Senate majority leader, issued a statement the following day indicating that the Senate would not consider any person nominated by President Obama, and the next president should be the person to replace Scalia.

The Republican-led Senate has been true to its word and has not held any hearings concerning President Obama’s nominee Merrick Garland, the chief judge of the Court of Appeals for the District of Columbia Circuit. With a Republican president-elect, there is little chance that Garland will become Justice Garland.

So what is next? Trump will likely move quickly to nominate a justice to replace Justice Scalia.

“Scalia will be replaced by someone similarly conservative,” predicts Professor Patrick Wiseman. Such a prediction is likely correct. Prior to his election, Trump released a list of judges he would potentially nominate to the Court. All tend to lean to the right of the political spectrum. For example, Judge William Pryor of the 11th Circuit has denounced the Supreme Court’s decision in Roe v. Wade, saying that the court manufactured “a constitutional right to murder an unborn child.”

Many judges on Trump’s list have clerked for the more conservative members of the Supreme Court earlier in their careers. Steven Colloton of the 8th Circuit clerked for Justice William Rehnquist, Joan Larsen of the Michigan Supreme Court clerked for the late Justice Scalia, three of the judges listed (Allison Eid of the Colorado Supreme Court, David Stras of the Minnesota Supreme Court, and Thomas Lee of the Utah Supreme Court) clerked for Justice Thomas.

Justice Scalia leaned to the right, so if Trump nominates (and the Senate confirms) a similarly conservative justice, “the doctrine won’t change that much,” Professor Wiseman said.

Professor Lauren Sudeall Lucas adds “it would also reinstate Justice Kennedy as the swing vote and the key to many of the Court’s rulings.”
Whoever is chosen will also likely serve on the Court for 30 years or more, depending on their age. Even if the doctrine will not likely change in the short term, the new justice will have an influence on the jurisprudence of the Court for quite a while.

Trump will have at least one seat to fill, but it is possible that he could have more. Justices Ruth Bader Ginsburg and Anthony Kennedy are both octogenarians (83 and 80 years old respectively), and Justice Stephen Breyer is 78. Should one or all of the justices retire or otherwise leave the Court within the next four years, a Republican president and a Republican Senate (assuming the Democrats do not take the majority in the 2018 election) will be able to appoint a justice with little to impede them.

“Should he succeed in having more Scalia-like justices confirmed, the Court will take a definite turn to the ideological right so that, in time, reproductive rights, same-sex marriage, any consideration of race in higher education admissions, voting rights, the right to sue and other rights which we have come to consider basic, will be in jeopardy,” Professor Wiseman said.
Professor Eric Segall’s prediction for the Supreme Court in the coming years is the same, he says, to Clubber Lang’s prediction for his fight with Rocky Balboa in Rocky III: “Pain.” “We are looking at a disaster on the Supreme Court for [the left],” Professor Segall said.

Professor Lucas is slightly more optimistic for the future of American jurisprudence: “While the Court plays a critical role in shaping federal law, so many important issues are resolved on the state level; I always try to remind my students that the Court is, in some ways, only one piece in a much larger puzzle.”

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