Donald Trump's Potential Impact on the Supreme Court

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 16, 2016

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TrumpAs President-elect Donald Trump begins to fill out his advisory staff and prepares to take office in January of 2017, legal pundits are beginning to speculate about what will happen with the Supreme Court over the next four years. With one vacancy still open and other justices aging towards a possible retirement, Mr. Trump could have up to four appointees during his tenure, which could shape the landscape of American jurisprudence for decades to come.

Supreme Court Vacancy Open for Donald Trump

With the Republican Party controlling the Senate, it is certain that Donald Trump will have at least one Supreme Court vacancy to fill . The former seat of Justice Antonin Scalia, who died in February, remains open and Mr. Trump’s election closes the door on any possibility that President Obama’s nominee, Judge Merrick Garland, will be voted on by the Senate. Judge Garland has been a pending nominee for the vacant seat left by Scalia since March 16, however, the Republican-led Senate has consistently refused to hold a hearing or vote given the uncertainty about the presidential election.

Garland, who is viewed as a center-left federal judge, may have been approved had Hillary Clinton taken the election, but with a Republican nominee promised by Donald Trump, there is no chance that the Senate will proceed with the pending nominee. Although Trump has not announced his intended nominee, and the issue was lost among the weeds as the election rhetoric built, it is certain that he will produce a judge who leans much more to the right than Garland. President Obama lacks the authority to bypass the Senate or to compel them to vote on Garland before Trump takes office in January, so there is nothing he or the Democrats can do to change the course of the Supreme Court.

Other Supreme Court Vacancies Possible for Donald Trump

Donald Trump is already in a rare position with one SCOTUS vacancy to fill — the first president-elect with such an opportunity since 1969 — and there may be more to come during his tenure. Predicting Supreme Court vacancies is always an uncertain gamble, however, three Justices are aging and could be nearing the end of their term on the Court. Justice Ruth Bader Ginsberg is 83 years old, Justice Anthony Kennedy is 80, and Justice Stephen Breyer is 78 — all have served on the Supreme Court for several years and may be ready to hang up the robe.

Even if all three of them decide to sit through a Trump presidency due to ideological differences with the president-elect — a likely outcome for both Ginsberg and Breyer, who are the strength of the Court’s liberal bloc — Justice Clarence Thomas (68) and Samuel Alito (66) may take a look at the political landscape and decide to retire during a Trump presidency to ensure a conservative appointee will replace them. While it is very unlikely that Alito — a Bush appointee — departs the Court, it is not so far-fetched to imagine that Clarence Thomas, who lost his closest ally on the bench when Scalia died, will decide to retire. Justice Thomas has been on the bench since 1991, and retirement could be on the radar.

Donald Trump’s Potential Nominees for the Supreme Court

Even if Trump only gets one Supreme Court nominee during his tenure as president, he will ensure that the conservative bloc remains four Justices strong. Although Mr. Trump has not given a clear indication of who his choice will be, he recently said in a 60 Minutes interview that the Justice will be pro-life, and advance a longstanding conservative jurisprudence movement pushing to overturn 1973’s Roe v Wade. During the campaign, Trump released two lists of potential justices — one with 11 candidates and later one with 21 candidates — most of whom have support of the conservative establishment and will fit into the camp of Thomas, Alito, and Chief Justice John Roberts. Should Trump get a second nominee from the retirement of Breyer, Ginsberg, or Kennedy he will shift the balance of the Court to consistently conservative for years.

Democrats or liberal jurists hoping to shape the nomination through political resistance to Trump’s appointee face a bleak proposition of success as parties in the minority have significantly less influence over approval of nominees than in years past, largely because of actions by Harry Reid and the Senate Democrats who invoked the “nuclear option” to quash Republican efforts to filibuster Obama federal judicial appointees. After Senate Democrats reduced the power of the filibuster to insignificant levels for other federal appointees, the Republicans are very likely to do the same against any resistance to President Trump’s Supreme Court appointees.

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