Trump and the Supreme Court

Plenty of people are talking about what Trump’s election will mean for the United States Supreme Court – for example, is this the end of the road for abortion rights and gay rights?  Trump’s picks for the United States Supreme Court will almost certainly affect national politics and the courts for years to come, but, at least in the short term, there is no looming apocalypse.  Gay marriage is safe and is not going anywhere, and Roe v. Wade has been mostly untouched for 43 years now and is not going to be suddenly overturned by a new Supreme Court.

How the Supreme Court Works

The United States Supreme Court is the highest court in the country and is established in the U.S. Constitution.  The number of justices on the Supreme Court has been set by statute at 9 justices since 1869.  The Court receives about 10,000 petitions a year from the hundreds of thousands of cases that make their way through the lower courts, but only hears about 75 – 85 cases a year.  The Court hears appeals from federal circuit courts of appeal and from state supreme courts when those cases have a federal or constitutional question that the case turns on, and then only when it is a matter of public or broad importance such as when the case would decide a split between the circuits.

With very few exceptions, cases are not filed directly in the Supreme Court, and it takes many years for a case to make its way through the court system and the appeals process before it may find its way to the Supreme Court.  Petitioners from the lower courts request what is called a Writ of Certiorari, or permission for the Court to hear their case, and 4 out of 9 justices have to agree to accept a case before it can be heard by the Court.

The Balance of Power in the Courts

Justice Scalia’s death left a vacancy on the court which leaves us at 8 justices now.  The Senate refused to vote on President Obama’s nomination for the Supreme Court, which leaves President-Elect Trump to fill the vacancy.  Scalia was one of the conservative justices that made up the majority of the Court, which means that whoever Trump nominates to replace him will likely re-form the same conservative majority.  There will be no change in the balance on the Court, which once again will have a conservative majority with Justice Kennedy as the tie-breaker.

The real concern for liberals is that there is an excellent possibility that Trump will have the opportunity to fill two more Supreme Court seats before his term is up.  Justice Ginsberg is 83 years old and Justice Breyer is 78, and they are two of the Court’s remaining liberal justices.  If Trump were to nominate conservative replacements for both of their seats on the Court, the balance of power on the Court would be 7-2 in favor of conservative justices, and this would certainly affect cases that are coming down the pipeline in years to come.  The other real concern is the lower court judges that will be appointed during President Trump’s term – these are the judges that hear the most cases and who have the biggest impact on the most people in federal courts across the country.

The bottom line is that overturning precedent (cases that came before that established the law as it currently is) is a slow and difficult process.  Judges are sworn to uphold the Constitution and laws of the United States and it does not matter who appointed them.  Consider that Roe v. Wade was decided in 1973 and, despite three Republican administrations having won the White House since then, it has not been overturned yet.  The last president who made it his mission to overturn Roe v. Wade was President Reagan.  Reagan appointed three conservative justices during his term – O’Connor, Kennedy, and Scalia.  When abortion rights came up again in a 1992 Planned Parenthood case, the majority upheld Roe v. Wade.  Two of Reagan’s appointments, O’Connor and Kennedy, sided with the majority and voted to uphold Roe v. Wade.

Trump’s election and subsequent judicial appointments will impact the direction and shape of our country’s laws and how we interpret the Constitution, but it will be a long, slow, and ultimately reversible process.  Gay marriage, abortion rights, and all other rights protected by the Constitution will not disappear on Trump’s first day in office, and democracy is, for the most part, working as intended.

4 Responses to “Trump and the Supreme Court

  • I think you are being overly optimistic. The Court is different since when Sandra Day O’Connor was there. And Trump has proposed a litmus test. I hope you are right….

    • That may be true. I do find it very interesting that earlier this year he said he would consider appointing justices to overturn gay marriage, but after being elected he’s changed his tune in saying that it has been decided by the courts.

  • Common Law
    4 years ago

    Go Trump!

  • Stephen Burt
    4 years ago

    This is exactly what I’ve been trying to tell people all along! :D Thanks for your blogs! They are so concise and easy to understand! Thanks

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