Storm Clouds over SCOTUS

By Eric Segall

It has been a rough year for the Supreme Court of the United States. Justice Antonin Scalia passed away unexpectedly in February. That very night, the Senate Majority Leader announced that the seat would remain vacant until the next President took office, which meant an incomplete Court for the remainder of the 2015-16 term and probably for the entire next term as well. Several Justices have been lamenting this short-handed state of affairs even if this author feels they are overreacting.

In any event, this unprecedented gambit by the GOP paid off handsomely for the Republicans, in the short term anyway, as now Scalia's seat, and any future vacancies over the next four years, will belong to them. In the long run, however, this shutting down of the entire nomination process during the last year of a Presidency may do lasting damage to the Court and its reputation. As Matt Ford recently argued, it will now be much more difficult for future Presidents to fill Supreme Court seats when the opposing political party controls the Senate. The future will surely bring even more nakedly partisan and acrimonious confirmation processes than those in the past and will do little to convince the public that the Court is anything more than a political institution.

Now that Judge Garland (a wonderful man who was treated horribly) will return to the Court of Appeals, and President-Elect Trump will fill the current vacancy, what will the new Supreme Court look like? That mostly depends on how many seats Trump gets to fill, which may turn into a problem for the Court. Justice Ruth Bader Ginsburg is 83 and Justice Stephen Breyer is 78. It is quite unlikely either will retire and voluntarily and hand the GOP their seat. Earlier this year, Ginsburg called Trump a "faker" and said she feared for the country if he were to be elected.

If Justice Ginsburg keeps making these kinds of controversial off-the-bench statements, however, or if she or Justice Breyer show serious signs of illness or age, the folly and dangers of life tenure will become apparent for all to see. Other Justices, such as Douglas and Marshall, stayed on the bench much longer than they should have but that happened before social media and not in the shadow of gross Senate manipulation (some would say repudiation) of the confirmation process. None of this bodes well for the Court's reputation.

If one of the liberal Justices does leave the Court, giving Trump more seats than the one held by the late Justice Scalia, the Court will likely turn sharply to the right but perhaps not in the way many people think. As both Mike and Bill have discussed on this Blog, there is great uncertainty about where Trump stands on social issues like abortion and same-sex marriage. Sure Trump has paid lip service to picking a Justice "like Scalia," but generally Presidents nominate Justices who will uphold the laws and policies the President cares most deeply about (exceptions are usually for specific personal characteristics  like Justice O'Connor being the first female Justice or Justice Sotomayor being the first Latina).

What does President-Elect Trump care about the most? The answer is likely deregulation and freeing up businesses (including his own) from safety, environmental, and other workplace rules imposed by the national (and possibly state) governments. Sadly, there is no shortage of judges and nationally known academics who might be willing to substantially dismantle even those regulations the GOP Congress wants to keep in effect or just doesn't have the time to repeal. Imagine a reverse New Deal with the full assistance of  a young and strongly anti-regulatory Trump Court. Ilya Shaprio and Randy Barnett, among many other judicial engagement folks, will be overjoyed by a return to free enterprise unimpeded by costly government oversight--environmental, safety, and consumer concerns notwithstanding. Of course, if this does happen, the naked political partisanship of the Court will be on full display given the Court's fifty year history of almost complete deference to economic legislation. In any event, if Trump does get more than one Supreme Court pick, it is likely the Court will be "unrecognizable a generation down the road."

On the other hand, perhaps Trump will nominate a traditional Scalia conservative for the one empty seat and then not be handed any other vacancies. Perhaps Justices Ginsburg and Breyer will serve the next four years with distinction (as they have throughout their careers) and Justice Kennedy will remain the most important judge in the world until he is 84 (as he has been for the last decade). If all of that sunshine occurs, then the storm clouds may well fade away-until 2020 when the next President, whoever he or she is, will probably get three or more vacancies over four years, and the partisan nomination circus will start all over again. I often wonder if there's a better way to select the men and women who get to sit on our nation's higher Court.