Election to shape Supreme Court

Election to shape Supreme Court
© Getty Images

This year’s presidential election will have a profound effect on the direction of the Supreme Court. 

Given the decision by Senate Republicans to block any nominee from President Obama to replace the late Justice Antonin Scalia, the next president will almost certainly get to make a nomination that could swing the balance of the court. 

ADVERTISEMENT

And the new president might have more than one seat to fill over the next four years, providing further opportunity to put their stamp on the bench.

By the end of the summer, two of the nine justices will be in their 80s.

Justice Ruth Bader Ginsburg is 83, and Justice Anthony Kennedy, known as the court’s swing voter, is turning 80 at the end of July.

“We could have a dramatically different Supreme Court over the next four to eight years with the change in personnel,” said Elizabeth Slattery, a legal fellow at The Heritage Foundation. “Kennedy has been on the court the longest, but he’s given no inclination he wants to retire. He seems pretty happy in his role.”

Obama has had two appointments in his eight years in office: Justices Sonia Sotomayor and, more recently, Justice Elena Kagan.

The ramifications are well known by both parties as well as court-watchers. 

“The court is now balanced between Republican appointees and Democratic appointees that pretty consistently vote in line with the positions of the president that appointed them,” said Dori Bernstein, director of the Supreme Court Institute at Georgetown Law. “Whoever gets to chose the tiebreaker is going to be making a very influential appointment.”

The justices on the eight-member court certainly recognize the stakes.

Ginsburg made headlines with her recent criticisms of Donald TrumpDonald John TrumpLawmakers prep ahead of impeachment hearing Democrats gear up for high-stakes Judiciary hearing Warren says she made almost M from legal work over past three decades MORE, the presumptive GOP presidential nominee.

Ginsburg told The New York Times that she “can’t imagine what the country would be — with Donald Trump as our president.”

“For the country, it could be four years,” she said. “For the court, it could be — I don’t even want to contemplate that.”

Supreme Court justices generally refrain from making political remarks. Ginsburg later said she regretted her comments.

“Judges should avoid commenting on a candidate for public office,” she said in a statement. “In the future I will be more circumspect.”

Trump called on her to step down from the high court.

“Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot — resign!” he said in a tweet.

In deciding to block Obama’s nomination of Merrick Garland to the court, Senate Republicans said the decision of who to nominate should be made by the next president. That effectively leaves the decision to voters in this year’s election, making it even more critical in deciding the makeup of all three branches of the federal government.

The decision also put more pressure on Trump, who has unnerved both establishment Republicans and some social conservatives with his rise.

Trump is a businessman who has given money to candidates from both parties, and he has taken liberal positions in the past, including on abortion.

As a GOP candidate, Trump has moved to the right on abortion but has kept more centrist views on other social issues such as gay rights.

In an effort to sooth concerns on the right, the real estate tycoon has promised to appoint conservative jurists.

In May, he released a list of 11 judges he would consider appointing. Several of his picks were appointees of former President George W. Bush.

Some on the left say the list was able to appease the concerns of conservatives about the makeup of the court. 

“You don’t ever know what Donald Trump will do, but for issues around the court he will turn to the establishment to help him make that decision and they know that, and they know that’s worth having as opposed to whoever [Hillary] Clinton will put in place,” said Michele Jawando, vice president for legal progress at the Center for American Progress.

The power to shift the balance of the court might even help him win supporters. 

The list gained praise from members of the GOP, with Senate Judiciary Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyOvernight Health Care — Presented by Johnson & Johnson – House progressives may try to block vote on Pelosi drug bill | McConnell, Grassley at odds over Trump-backed drug pricing bill | Lawmakers close to deal on surprise medical bills GOP senators request interview with former DNC contractor to probe possible Ukraine ties Congressional leaders unite to fight for better future for America's children and families MORE (Iowa) calling it “impressive.”

The court fight could also help Trump by bringing conservatives to his cause.

Hillary ClintonHillary Diane Rodham ClintonWill the Horowitz report split the baby? Gabbard commemorates John Lennon's passing by singing 'Imagine' Bannon: Clinton waiting to enter 2020 race and 'save the Democratic Party from Michael Bloomberg' MORE, who is expected to be nominated by Democrats for president at that party’s convention later this month, is an adamant supporter of abortion rights who would be expected to continue Obama’s move of the court to the left.

In fact, if Clinton beats Trump, some groups think it is possible the Senate will move to confirm Garland to prevent a more liberal nominee from being offered by Clinton.

Conservatives are concerned a liberal court could put new restrictions on the Second Amendment and overturn the court’s 2010 decision that allowed corporations to spend freely on politics.

 “I think it should come as no surprise that Citizens United is on the hit list,” Slattery said.

Supporters of Garland also see this as a possibility, though they note nothing can be taken for granted. 

“It certainly would take a significant amount of coordination and willingness to make that happen, but we’ve seen a lot of complex legislation pass in a lame-duck period,” said Sarah Warbelow, legal director of The Human Rights Campaign.