The Supreme Court Under Clinton
The race has unexpectedly tightened in these final moments. But a Clinton win is still the most likely outcome. Despite his rival’s numerous scandals, Trump’s own flaws have kept him from winning the support he needs. Even some lifelong Republicans are finding themselves unable to pull the lever for their party’s nominee.
The Supreme Court looms large for most of us on the right—typically, it’s either a reason to vote for Trump or a reason to agonize over not doing so. (You can see various TAC writers’ thoughts on the candidates, including mine, here.) So what exactly happens if Clinton wins?
The practical aspect of this question boils down to a series of decisions Republicans and Democrats will have to make. The first will be Republicans’ dilemma over whether to confirm Merrick Garland, Obama’s current nominee to replace the late Antonin Scalia. Obama said in April that he won’t withdraw the nomination after the election, and Garland is widely regarded as a moderate. If the Republicans are to confirm a Democratic nominee to fill Scalia’s seat, Garland is likely as good as they’re going to get.
There is some talk, though, of Republicans’ simply refusing to confirm any nominees through Clinton’s presidency. This would spark an enormous public outcry, possibly with future electoral consequences. And even if the GOP stood its ground, Democrats might try an end-run.
There are two ways they could do this. If they control at least half the Senate (the Democratic vice president would cast the tie-breaking vote if needed), they could exercise the “nuclear option,” eliminating Republicans’ ability to filibuster Supreme Court nominees. They’ve already gone most of the way—in 2013, before Republicans seized the chamber, Democrats killed the filibuster for other nominations—and Tim Kaine has explicitly mentioned this possibility. In fact, a newly Democratic Senate could do this even if Trump wins, because Congress changes over before the presidency does.
The other route is so far-flung it’s hardly worth mentioning, but then again this is 2016: if Democrats don’t win the Senate, President Obama could go nuclear on his own, using his recess-appointment power to install Garland during the switch between Congresses in January. This would provoke a constitutional crisis, as such a move rests on a ridiculously shaky legal foundation, namely the idea that the Senate waives its right to consent to nominations when it fails to act on them, even though the Constitution says no such thing. The Senate would file suit, and the Supreme Court itself would eventually hear the case—with eight judges, as Garland would have to recuse himself. After all that, the nominee would serve only two years.
The most likely outcome is that the GOP will live with a Democratic nominee, whether it’s by confirming Garland right away, “Borking” a liberal or two before accepting a moderate from Clinton, or losing the Senate along with the filibuster.
But more extreme outcomes are possible because the stakes are so high. The Court is divided 4-4 between liberals and conservatives; one of those “conservatives” is Anthony Kennedy, who’s more of a swing justice with some libertarian tendencies; and three justices (Kennedy and two liberals) are at least in their late 70s. This election could make the Court reliably liberal for decades.
The situation is made even more frustrating by the fact that conservatives have struggled so mightily for so long, both intellectually and politically, to move the Court in a more “originalist” direction—meaning the justices would strive to implement the original understanding of the laws we live under, not their own policy preferences. Even after winning at the ballot box, Republicans have often failed to translate their power into actual conservative justices, so the gains they have made feel all the more precious. The 5-4 gay-marriage ruling written by Kennedy, a Ronald Reagan appointee, is just the most recent example.
Here’s the most shocking illustration of the GOP’s Supreme Court problem: in the 19 years between Roe v. Wade and Planned Parenthood v. Casey, Republicans lost only one presidential race. The Court that decided Casey in 1992 included two Bush I appointees (Clarence Thomas and David Souter) and four Reagan appointees (William Rehnquist, Antonin Scalia, Sandra Day O’Connor, and Kennedy), in addition to a Ford appointee (John Paul Stevens) and a Nixon appointee (Harry Blackmun). Only one justice had been appointed by a Democrat, and that was Byron White, who’d dissented from Roe and supported overturning it.
And yet the Court upheld a constitutional right to abortion, though Roe’s seven-vote consensus for such a right was whittled down to five and several restrictions were also upheld. Three of the justices who helped keep Roe alive were consistent liberals during their time on the Court despite having been appointed by Republicans.
Even handicapped by nominees who defect to the other side, though, the conservative legal movement has made real progress in areas where Kennedy has proven willing to cooperate. Gun rights are a prime example: over the course of several decades, originalist scholars carefully excavated the history of the Second Amendment, proving that it protected an individual right to own guns (and even winning over some liberals). With an opinion written by Antonin Scalia, the Supreme Court formally endorsed this reading in 2008’s Heller.
A quarter-century after coming so close to undoing Roe, and following important victories like Heller, it will be crushing for Republicans to watch all their progress be swept away. Certainly there will be no more wins for the conservative legal movement in the near future if Congress confirms multiple Clinton judges. Hopes of overturning Roe anytime soon, already looking far-fetched, will disappear. And whether the other rulings survive will depend on the degree to which our new, liberal Court feels bound by conservative precedents.
Conservatives may or may not see that as reason enough to vote for Trump. But it’s certainly a reason they’ll be feeling queasy tomorrow.
Robert VerBruggen is managing editor of The American Conservative. Follow @RAVerBruggen