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The United States Supreme Court (SCOTUS) is, without question, the most powerful judicial body in the nation. It’s an “Article III Court” under the U.S. Constitution, and so it has national jurisdiction over matters that involve a “federal question,” as well as diversity jurisdiction (i.e., litigants from two different states). But beyond that rather dry definition lies the Court’s real power: it has the final say on whether laws are constitutional.
Right now, there are eight justices sitting on the Supreme Court, with one highly publicized vacancy created by the untimely death of Justice Antonin Scalia in early 2016. While justices are not supposed to be affected by political partisanship, there is, on many issues, a clear-cut divide between the conservative jurists and those who lean to the left. Before Scalia’s death, the nine-member court was evenly divided, 4-4, between conservative- and liberal-leaning justices, with the ninth vote being that of “swing voter” Justice Anthony Kennedy.
With the death of Justice Scalia, a gaping conservative hole was created—and remains unfilled, despite President Barack Obama’s appointment of Merrick Garland. The Republican-controlled Senate has refused to hold hearings on Garland’s nomination. As a result, President-elect Donald Trump will have the final say on who will fill the empty Supreme Court seat, and his choice could have major implications for longstanding national issues.
The question on everyone’s mind is: What kind of person will Trump appoint? Will he or she be a dyed-in-the-wool conservative whose vote could undo such landmark precedents as the legalization of abortion rights or same-sex marriage?
How common law comes to be
Quick civics lesson: SCOTUS is not technically in the business of “making” laws. Rather, the Court is tasked with interpreting statutes given a specific set of facts. But first, an actual, real-life person has to make a claim of harm under one of many federal statutes, and that claim must meander its way through a federal district court and a federal court of appeals before it finally reaches the U.S. Supreme Court.
Once a case is appealed to the SCOTUS, the justices decide whether or not they want to hear it. In general, the Court only agrees to hear cases that involve major issues of constitutional law. For perspective, the Court agreed to hear just 0.862 percent of the petitions filed during the 2011-2012 term.
The major issues
Keeping in mind the above—and assuming Trump opts to appoint a conservative jurist to replace Scalia—let’s take a look at how some of today’s hot-button issues might be decided if challenged on appeal:
- Right to Privacy: The Supreme Court carved out the right to privacy from the Fourteenth Amendment in Griswold v. Connecticut, a case that helped establish key fundamental rights concerning reproduction, contraception, and personal liberties. Decided in 1965, the Court voted 7-2 in favor of striking down a law that prohibited married couples from seeking advice related to contraceptive use. Under today’s Court, a conservative Trump pick would likely carry little weight in a challenge to this fundamental right, which has held steady for over 50 years.
- Reproductive Rights: In 1973, about eight years after the Griswold opinion, the Supreme Court used that case to deem the right to terminate a pregnancy to be a fundamental right in Roe v. Wade. In another 7-2 decision, dissenters included the “wild-card” Justice Byron White and the staunchly conservative Justice William Rehnquist. With a conservative filling Scalia’s seat, the ideological balance on the Court would remain tied at 4-4, with Justice Kennedy as a swing vote. In a 1992 plurality opinion on a related abortion issue, Kennedy defended the constitutionality of reproductive rights, calling on the contending sides “to end their national division by accepting a common mandate rooted in the Constitution.” In sum, a Trump appointment would be unlikely to undo the reproductive rights precedent already firmly in place.
- Marriage Equality: The Supreme Court’s decision in Obergefell v. Hodges—creating the fundamental right to marry for all—was carved out of the Due Process clause of the Fourteenth Amendment. Unlike the decisions above, the vote was much closer: a 5-4 split, with Kennedy casting the swing vote. A conservative replacement of Scalia would not change the outcome of this analysis; however, a conservative replacement of the aging Kennedy could make all the difference. However, Trump has publicly stated that marriage equality is “done and settled” – and would presumably not strive to appoint a marriage traditionalist in the event Kennedy’s seat were to become open.
What if more vacancies arise?
This analysis considers likely outcomes of Trump replacing Scalia with a reliably conservative jurist. But as the above description of the right to marriage equality indicates, the tide could turn in the event Trump is afforded a second, third, or even fourth Supreme Court appointment during his tenure. Today, two of the Court’s jurists are in their 80s—Justice Ruth Bader Ginsberg is nearing 84 years old, while Kennedy is 80.
The replacement of these two jurists—due to retirement or declining health—could create a 6-3 conservative-to-liberal split, at which point major national issues concerning immigration, voter rights, and health care could be decided in line with the Court’s new (hypothetical) conservative slant.
For now, however, SCOTUS-watchers shouldn’t be too concerned about Trump filling Scalia’s seat, as the ideological balance would remain largely unchanged.