The Future of the Supreme Court

supreme-court-building-120628Lots of chatter out there about the future of the Supreme Court in the wake of Trump winning the presidency. Here are some of my thoughts.

First, regarding the current Court: Assuming Clinton would win the presidency, I was predicting Garland would be confirmed to fill Scalia’s vacancy and Ginsburg would retire in 2017 (maybe 2018)—with Breyer possibly retiring shortly thereafter, before Clinton’s first term was over. The Court would shift to the left with the addition of Garland, but no other shift would occur unless Clinton could win a second term. If that happened, Clinton likely would have replaced Kennedy—and maybe even Thomas—and this would have produced a second significant shift leftward. But now all of this is vapor.

With Trump’s election, Garland goes back to the D.C. Circuit and becomes a colorful (and controversial) anecdote in Supreme Court history. And the likelihood of future vacancies changes, too. Ginsburg is 83, Kennedy is 80, and Breyer is 78—so it once seemed certain that Ginsburg and Breyer would retire within the next four years, and Kennedy within eight. But now I think it’s unlikely that any of these justices will retire anytime soon. There were some rumors that Kennedy might be preparing for retirement, but they seem to have been debunked. And there have been rumors that Thomas might retire under a Republican president—but his wife has repeatedly insisted those rumors are likewise untrue. So, as it stands, there isn’t much basis for thinking anyone will voluntarily leave the Court in the next four years.

That being said, I do think it’s at least somewhat possible that Thomas could decide to retire in, say, 2019. He’s in his 70s; he would surely prefer to be replaced by a Republican rather than by a Democrat; and Trump (right now) seems likely to be a one-term president. For these reasons, Thomas could opt for a strategic retirement sometime in the next four years. But the smart money probably says he stays.

Meanwhile, it seems highly unlikely that Ginsburg or Breyer will willingly retire under Trump. I’m guessing they both try to hold on for four years, hoping a Democrat wins the presidency in 2020. Lots of people thought Ginsburg should’ve stepped down in 2014-2015, due to concerns about her health and longevity. But she didn’t. Now, everyone will be watching the health of both Ginsburg and Breyer, morbidly, like greedy heirs eager to divvy up the estate.

Kennedy is hardest to predict. With Trump’s election, Scalia’s seat will be filled (most likely?) by a reliable conservative (see below). This would return the Court to the rightward tilt it had before Scalia’s death. And it would put Kennedy back in the catbird seat, as the swing justice. Kennedy likes being in that powerful position. Plus, if he steps down, he could be replaced by a hard-right conservative—and Kennedy wouldn’t like the idea of a hard-right Court undoing some of his biggest decisions (like possibly Obergefell). For these reasons, I tend to think he’ll stay on the Court as the swing justice for as long as possible. But this may depend a lot on Trump.

Trump’s in a position to pick a Scalia-like replacement for Scalia. But Trump is, if anything, a wildcard. If he picks a Scalia-type justice to replace Scalia, I think Kennedy will see that as a sign that Trump would likewise replace Kennedy with a Scalia-like justice—which might dissuade Kennedy from leaving. But if Trump picks a more moderate, libertarian-minded conservative—someone more like Kennedy, that is—to replace Scalia, then Kennedy might feel more comfortable stepping down before Trump’s term is over. In other words, those who are advising Trump about replacing Scalia should be doing so with Kennedy in mind. If Trump and his team play it smart, they could get two appointments in Trump’s first term. And this could shift the Court further to the right from where it was when Scalia was still around.

And, of course, if Trump gets the opportunity to replace Ginsburg or Breyer—or both—he’ll have the opportunity to shift the Court dramatically rightward. For decades.

But Trump’s a wildcard, so we have no idea (yet) who he’ll actually appoint to the Court. All we can do is look at his campaign list of possible nominees, for whatever that’s worth.

The list is interesting. Many of the typical Republican short-listers (like Paul Clement) are missing. Two of the most well-known candidates are Judge Neil Gorsuch from the Tenth Circuit Court of Appeals and Justice Don Willett from the Texas Supreme Court. Gorsuch is a great writer—one of the best—and known as a reliable conservative. And Willett, who is also a great writer, is potentially the most conservative judge on the list: you could say he lives in the Ted Cruz tent, in the Republican campground. Willett would be a popular pick among non-lawyer folks, thanks to his well-known Twitter account. And it would be interesting to see if he would continue tweeting as a U.S. Supreme Court justice. (For the record, I hope he would—I think it’s great for public officials to be connected to the people in that way.) But Willett might face some obstacles (see below).

Another interesting candidate on Trump’s list is Justice Thomas Lee from the Utah Supreme Court. Lee is the son of Rex Lee, who was Reagan’s Solicitor General in the 1980s. Lee would be the first Mormon on the U.S. Supreme Court, which is significant. He’s an originalist and a reliable conservative, but being a Mormon might also make him a smart political pick. Mormons have long been a strong Republican constituency (since the 1970s), but they rejected Trump in large numbers this year. In a typical presidential election about 75% of Mormons will vote Republican; about 85% voted for Romney in 2012; but according to exit polls, only about 60% voted for Trump last Tuesday. Nominating Lee to the Supreme Court (or perhaps as the next Solicitor General?) might help to bring disaffected Mormons back into the Republican fold.

Another leading candidate on Trump’s list is Judge William Pryor from the Eleventh Circuit. Pryor is from Alabama. Trump’s inner circle includes Senator Jeff Sessions from Alabama, who Trump singled out for praise on election night, and some say Sessions wants Pryor on the Court—so Pryor might have an inside track that others don’t have. Willett, for example, being part of the Cruz crowd—and having poked fun at Trump on Twitter a few times, during the Republican primaries—might not have anyone promoting him on the inside. Pryor is definitely seen as a reliable conservative, and he would bolster Trump’s populist credentials as the first justice in decades who didn’t graduate from a top-five law school. (He graduated from Tulane.) For what it’s worth, right now my money’s on Pryor.

The last and most important point I’ll make is this: Trump can do whatever he wants. The Republicans control the senate, and they’ll eliminate the filibuster if they have to, so the Democrats are toothless. The only possibility of restriction lies with fellow Republicans. But Trump leads the alt-right and just won a historic electoral victory. He’s already proven himself capable of rolling most Republicans his way, and he has even more leverage in the party now that he’s actually president. So make no mistake: Trump can do whatever he wants. Which means the future of the Supreme Court is a big question mark.

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