The GOP’s Supreme Court Gamble Pays Off
When the 114th Congress officially came to an end at Noon yesterday, we also came to the end of a political stand-off that lasted the better part of a year over the Supreme Court. It began just under a year ago when Supreme Court Justice Antonin Scalia passed away unexpectedly leaving the Supreme Court with eight members and an ideological divide that caused a handful of the cases argued in the October 2014 Term to end in 4-4 ties that resulted in letting the decision below stand without establishing any kind of national precedent. Almost immediately after Scalia’s passing, Republicans in the Senate and around the country lined up behind the idea of blocking any Supreme Court nominee until after the Presidential election. At the time, it seemed like a risky political move on the part of the Senate GOP for several reasons. First of all, it would be a rather public example of the kind of gridlock that poll after poll has shown the public to be largely opposed to, and given that it was a move that the GOP would have to remain consistent on through the election and there were some analysts who believed this would ultimately hurt the party at the polls. Additionally, Republicans were taking a huge political risk that could either pay off if a Republican won the White House and the GOP maintained control of the Senate, a prospect that seemed unlikely in the early part of 2016 when it was becoming apparent that Donald Trump would win the GOP nomination and that polling showed him losing to Hillary Clinton, or backfire in the worst of all possible outcomes. The GOP was also risking that a newly elected Hillary Clinton in the White House would appoint someone to the left of Merrick Garland, the center-left Chief Judge of the Court of Appeals for the District of Columbia Circuit that President Obama appointed to fill Antonin Scalia’s seat. Finally, for the plan the entirety of the Republican caucus needed to stick together for the better part of a year. While the GOP has been relatively good at keeping united, there was at least some speculation that the pressures of an election year, especially on Senators in states deemed to be at risk in 2016 such as Illinois, Wisconsin, Ohio, Pennsylvania, Florida, and New Hampshire.
As it turned out, the gamble paid off. Not only did Republicans win the White House, they managed to hold on to the Senate with a loss of only two seats, in Illinois and New Hampshire, meaning that they should easily be able to confirm whomever President-Elect Trump chooses to fill the seat left vacant by the late Justice Scalia nearly a year ago. SCOTUSBlog’s Amy Howe takes note of all this, and then turns to the future direction of the Court:
Nearly 300 days ago, on a sunny March morning, President Barack Obama nominated Merrick Garland, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, to fill the vacancy created by the death of Justice Antonin Scalia. That nomination officially expired today at noon, when the 114th Congress came to a close.
Obama could have nominated Garland again as a matter of principle, or he conceivably could have attempted to install him without the Senate’s consent during the recent congressional recess. Instead, the president took the less controversial path of letting the nomination expire. Garland now resumes his duties on the court of appeals.
The Republicans’ strategy was controversial but ultimately successful. Although Obama might have hoped that Garland’s sterling qualifications and his reputation as an ideological moderate would leave Senate Republicans with no choice but to confirm him, Republicans held their ground, refusing even to hold hearings on the Garland nomination. And the strategy paid off: Now President-elect Donald Trump will nominate a replacement for Scalia instead. During the campaign, Trump released two lists of potential nominees to the Supreme Court, and he has promised to choose a nominee from those lists to succeed Scalia.
The potential nominees on Trump’s lists are all solidly conservative, significantly more so than Garland. The consequences of the resulting ideological shift on the Supreme Court are likely to be felt in U.S. law for decades.
I actually disagree with Howe on her last point here. Whomever Trump appoints is unlikely to cause the Supreme Court’s ideological balance to change significantly from where it stood before Justice Scalia died. At that point, we had four Justices who rather routinely could be counted on to stay more or less together on the ‘conservative’ side (Roberts, Alito, Scalia, and Thomas), and four who could be counted on to stick more or less together on the ‘liberal’ side (Ginsburg, Breyer, Sotomayor, and Kagan). In the middle, usually, there would be Justice Anthony Kennedy, the final Supreme Court nominee submitted by President Reagan during his time in office and, as I’ve noted before, a man whose presence on the Court is due solely to the Democrats’ successful effort to block the nomination of Robert Bork in 1987. While there were often times when the outcome of particular cases would defy prediction and you’d see conservative and liberal Justices on the same side of particular issues in particular cases, when it came to even some high-profile cases, in the most controversial cases it was almost always Kennedy who would be the deciding vote and, quite often, the author of the majority opinion. This has been especially true on issues such as LGBT rights such as the marriage equality cases that the Court dealt with in 2013 and 2015, as well as issues such as abortion and affirmative action. A Republican replacing one of the core conservatives with another conservative Judge, or a Democrat replacing someone from the liberal side, then, would not really have an impact on the ideological balance on the Court in the short-term.
That isn’t to say that Trump’s appointment will have no impact at all. For one thing, each Justice is an individual rather than just a peg that easily fits in an ideological whole. While Justice Scalia was generally a conservative, there were plenty of times when he took positions that, to outside observers, seemed at odds with his supposed political ideology. Early in his tenure on the Supreme Court, for example, Scalia joined liberal stalwarts such as William Brennan and Thurgood Marshall in a ruling that declared that laws banning the burning of the American Flag violated the First Amendment. When asked about that ruling in particular over the years, Scalia would often say that if he were King he would outlaw flag burning but that the First Amendment compelled him to reach the conclusion that it was protected free speech, a conclusion that fellow conservatives who were on the Court at the time, such as the late Chief Justice William Rehnquist and Justice Sandra Day O’Connor, most emphatically disagreed with. Other Justices who have been on the Court for a long time will have similar examples in their own history of times when they voted in a manner that defied expectations, including whoever Trump appoints. Additionally, given that the makeup of the Court is so small it’s inevitable that each new Justice has at least some impact on their fellow Justices, something that has been talked about in many books about the Court, including Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court. Finally, it’s unlikely that whoever Trump appoints will have the same long-term influence on American law that Justice Scalia is likely to have. As even Scalia’s critics have admitted for years, Scalia’s opinions and dissents will likely be studied by law students, legal scholars, law professors, attorneys, and Judges for a long time to come and his legacy is likely to be similar to that left behind by Justices such as Oliver Wendell Holmes Jr., Louis Brandies, William Brennan, and others who have become the stars of American jurisprudence.
Beyond this, though, Trump’s first appointment, which could come before he takes office or shortly thereafter so that confirmation can take place fast enough for the new Justice to take part in the final arguments of the Court’s current term, is unlikely to have a serious impact on the direction the Court was moving before Justice Scalia died. Instead, the opportunity for real change will come if and when President Trump gets the opportunity to appoint another Justice in the next four to eight years. In all likelihood, there will be at least one more vacancy some time in the next four years, and there certainly would be one or more some time in the next eight years should Trump win re-election in 2020. The most likely candidates for that vacancy at this point are Justices Breyer, Ginsburg, and Kennedy, all of whom are over 70 years old at this point, with two of them (Ginsburg and Kennedy) already above 80. Replacing either Ginsburg or Breyer, of course, would mean that the Court’s liberal wing would be reduced to three members. Replacing Kennedy would mean that the ‘swing’ vote on the Court would presumably be far more reliably conservative. Either way, this will likely influence the direction of the Court for several decades at least. Either event will be a signiicant threshold in the development of Constitutional law in the future.