Looking Ahead (With Dread) to Trump’s Supreme Court

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Trump promised a much more conservative Court hostile to precedents like abortion rights. He may have the chance to deliver.Photo: Zach Gibson/Getty Images

Donald Trump’s pledge to appoint conservative “pro-life” justices to the U.S. Supreme Court was reportedly central to his ability to attract 81 percent of the white Evangelical vote on November 8, despite his pagan lifestyle. Religious folk weren’t the only ones thinking this way: More secular-minded Republicans like Hugh Hewitt focused on the Court’s power to rein in government and decided to vote for Trump even if they considered him generally an ignorant lout (you know, the guy who was clueless when Hewitt asked him about the nuclear triad during a Republican debate).

So now that he’s won, what is likely to happen to SCOTUS?

Well, the most important thing that happened to the Court aside from Trump’s election is that Trump’s party held on to the U.S. Senate. The Republican conference also shed one of the very few senators (Mark Kirk of Illinois) who might have voted against a Trump nominee hell-bent on overturning constitutional abortion rights. Yes, in theory, Democrats could filibuster a Trump nominee they don’t like, but then they would be inviting an almost certain invocation of the “nuclear option” by Mitch McConnell to extend the current majority-vote rules for judicial confirmation to SCOTUS. They’d be more likely to use the threat of a filibuster to try to influence Trump to pick someone less reactionary than would otherwise be the case, but it is not clear if Republicans will have any interest in compromising on a topic so important to key elements of their base.

So poor Merrick Garland’s nomination is over, and the odds are very high that whoever Trump chooses to succeed Antonin Scalia will be confirmed. That right away will break the current 4-4 deadlock of the Court on a lot of topics, including the big cases left undecided last year on President Obama’s immigration enforcement initiative and on the “right” not to join public-sector unions.

Trump would have a much bigger impact on the Court if he got two appointments. That’s what it would probably take to discharge Trump’s debt to the Christian right by engineering the reversal of Roe v. Wade and its guarantee of a constitutional right to abortion, since swing vote Anthony Kennedy chose to implicitly reconfirm Roe in the Whole Women’s Health v. Cole case involving state restrictions on abortion clinics.

That leads to the delicate subject of judicial mortality. Two of the five justices in the majority on Whole Women’s Health are in their ‘80s: Ruth Bader Ginsburg (83) and Anthony Kennedy (80). A third, Stephen Breyer, is 78. After that, the age of justices drops dramatically to Clarence Thomas at 68, Samuel Alito at 66, Sonia Sotomayor at 62, John Roberts at 61, and Elena Kagan at 56. Let us just say that so long as a Republican is in the White House, time is not on the side of a constitutional right to abortion. And if and when Donald Trump gets to nominate that potential fifth vote to reverse Roe, you better bet that he will have to remove any doubt his nominee would rather exercise their Second Amendment rights on themselves than betray the Cause of the Unborn. The Betrayal of the Unborn by so many other Republicans nominees in the past was a significant factor, as it happens, in the estrangement of the Republican base from party elites that Trump so successfully exploited to climb to the presidency.

It is possible, of course, that the Senate could swing to the Democrats in 2018 and frustrate some hypothetical second Trump SCOTUS nomination much as Republicans frustrated Obama’s third. But the wildly pro-Republican Senate landscape in 2018 means that the kind of Democratic wave that would flip the House might not produce the net gain of three seats it would take for Democrats to recapture the Senate. So even if President Trump’s power to get legislation through Congress is destroyed, his ability to get SCOTUS nominees through the Senate could well survive.

Progressives who care about constitutional law, even if they are not religious, should pray every day for the health of Justices Ginsburg and Breyer, and when it comes to the right to abortion, Justice Kennedy as well. Otherwise, the gamble of many Trump-disliking conservatives that he could reshape the Court in their direction for many years to come might very well pay off.