This article appears in the Winter 2017 issue of The American Prospect magazine. Subscribe here.
Will it be possible to protect the Supreme Court from Donald Trump’s presidency?
Unfortunately, the answer to this question is not encouraging. Even optimistically assuming that Trump is a one-term president, he has the chance to reshape the federal judiciary for decades. His appointees to the bench are unlikely to find his policies to be unconstitutional. In fact, many of his frightening proposals would be difficult for any court to strike down.
Thus it will be crucial to fight against the worst Trump nominees for the courts, even if blocking them may not be possible, and to use every available means to mobilize people to oppose the worst policies, even if stopping them often will prove impossible. We must hope that a successful coalition can be built with the relatively few moderate Republicans in Congress. At the very least, this can provide a foundation for effective campaigns in 2018 and 2020.
The place to begin is with the late Justice Antonin Scalia’s seat. Democrats are right to be furious that the Republicans acted in an unprecedented manner in refusing to hold hearings or a vote on the nomination of Chief Appellate Judge Merrick Garland. This was the 25th time in American history that a vacancy occurred during the last year of a president’s term. In 21 of the 24 prior instances, the Senate confirmed the nominees, and in the other three, the Senate refused to approve. This time, the Senate did nothing at all, and there was nothing that President Barack Obama or Senate Democrats could do about it.
But the long-term cost of replacing Scalia with a staunch conservative—and everyone on Trump’s list of 21 prospective Supreme Court nominees is just that—cannot be overstated. Major ideological shifts on the Supreme Court are rare. The Court became very conservative by the 1880s and remained that way until 1936, striking down more than 200 progressive laws, such as those limiting child labor and imposing minimum wages and maximum hours in the workplace.
From the late 1930s through 1969, a majority of the justices were appointed by Democratic presidents. Especially under the leadership of Chief Justice Earl Warren, though a Republican, the Court struck down laws requiring racial segregation, applied the Bill of Rights to state and local governments, and greatly expanded voting rights.
From 1970 until February 13, 2016, when Scalia died, there always have been at least five and as many as eight justices appointed by Republican presidents. Today, there are four justices appointed by Republicans and four justices appointed by Democrats. Replacing Scalia with a conservative will restore the Court to the same ideological balance that it had before his death.
Keeping this ideological balance has real costs. Consider some examples:
Campaign Finance. Citizens United v. Federal Election Commission, in 2010, held that corporations have a First Amendment right to spend unlimited amounts of money from their corporate treasuries to get candidates elected or defeated. The case was decided by a 5–4 margin, with Scalia in the majority. Replacing him with Merrick Garland or a Democratic nominee would have meant a realistic possibility of five votes to overrule Citizens United. Hillary Clinton repeatedly said that was her goal in nominating justices for the Supreme Court.
Justice Antonin Scalia in 2010
Large expenditures by rich individuals and corporations on behalf of candidates always raise the appearance of government officials beholden to those who spent the money to get them elected. The Court not only could have overruled Citizens United, but could have reconsidered the earlier holdings that equated money with speech and allowed unlimited election expenditures by the rich. Scalia’s replacement could well join the remaining four justices from the Citizens United majority in striking down other campaign-finance restrictions, such as the limits on “soft money” spent by political parties and restrictions on contributions to candidates by corporations and unions.
Unions. It now seems inevitable that the Supreme Court will deal a severe blow to unions by holding that non-union members cannot be required to pay the share of dues that supports the union’s collective-bargaining activities. In 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees’ union, but the Court also held that non-union members can be required to pay the portion of union dues that covers its collective-bargaining activities. The Court explained that non-members benefit from collective bargaining in their wages, hours, and working conditions. They should not be free riders. The Court said, though, that non-union members cannot be required to pay the share of the union dues that go to support the political activities of the unions; that would be impermissible compelled speech in violation of the First Amendment.
In two recent cases, in 2012 and 2014, the five conservative justices then on the Court—Chief Justice John Roberts and Associate Justices Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito—strongly indicated a desire to overrule Abood and prevent public employees from being required to pay their “fair share” of union dues. A case, Friedrichs v. California Teachers Association, was then filed to provide a vehicle for that outcome, and after the oral arguments on January 11, 2016, there seemed little doubt that the Court was poised to overrule Abood. The effect of this would be to make “right to work” (without paying union dues) a constitutional requirement for public employees’ unions. There would be a substantial decrease in union revenues, union membership, and union political influence.
Scalia died just two days after oral arguments, before the Court issued its decision. The justices later announced that they were deadlocked 4–4, which means that Abood remains the law. But with Scalia to be replaced by a conservative, overruling Abood seems a certainty.
Guns. Few issues so closely correspond to ideology and party affiliation as the meaning of the Second Amendment. Until 2008, the Supreme Court never had invalidated any law for violating the Second Amendment. The Court always had ruled that the Second Amendment was about a right to have guns for the purpose of militia service. But in District of Columbia v. Heller that year, the Court, in a 5–4 decision, struck down a 32-year-old District of Columbia ordinance that prohibited private ownership or possession of handguns. Scalia wrote for the Court, joined by Roberts, Kennedy, Thomas, and Alito. Two years later, in McDonald v. City of Chicago, the same five justices were the majority in a 5–4 decision holding that the Second Amendment is a fundamental right that applies to state and local laws as well. These are the only cases in all of American history to invalidate laws for violating the Second Amendment.
Without Scalia, the Court was split 4–4 on the meaning of the Second Amendment. The appointment of Garland or of a Clinton nominee would have meant the Court would have been unlikely to extend gun rights and very well might have overruled Heller and McDonald. Replacing Scalia with a conservative means a Court likely to strike down many other laws regulating firearms.
Separation of Church and State. Views on the Establishment Clause, too, very much track political party ideology. Conservatives interpret this provision narrowly as only prohibiting the government from establishing a church or coercing religious participation. Liberals see the Establishment Clause, in the words of Thomas Jefferson, as creating a wall between church and state.
This ideological split was reflected in the Court’s most recent decision on the Establishment Clause, Town of Greece v. Galloway (2014). For an 11-year period, the town board of Greece (a town of roughly 100,000 people outside Rochester, New York) invited, every month, almost without exception, a Christian clergy member to deliver a prayer before its meetings. The prayers usually were explicitly Christian in their content. In a 5–4 decision, the Court rejected an Establishment Clause challenge to the town’s practice, with Kennedy writing the Court’s opinion (joined by Roberts, Scalia, Thomas, and Alito), while Elena Kagan wrote the dissent (joined by Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor).
Then-Senate Minority Leader Harry Reid speaks at the U.S. Capitol to call on Republican leadership to conduct confirmation hearings for Judge Merrick Garland.
Replacing Scalia with Garland or a Clinton nominee would have meant five justices in favor of enforcing the separation of church and state. But when the Trump justice joins the bench, there again will be a majority to allow much more in the way of prayer at public schools and government events, religious symbols on government property, and government aid to parochial schools for religious instruction. If Trump carries out his campaign promise to have a registry of Muslims, a Court that has found few violations of the Establishment Clause could find a Muslim registry constitutional.
Access to the Courts. In a series of ideologically divided 5–4 decisions, with Scalia in the majority, the Supreme Court in recent years has greatly protected businesses at the expense of injured consumers and employees. The Court, for example, has ruled that clauses in worker and customer contracts that require arbitration must be enforced and can be used to keep those with valid claims from suing in court. Similarly, the Court has significantly restricted the ability of those hurt to bring class-action suits. When a large number of people each suffer a small injury by a major corporation, a class-action suit is often the only affordable way those people can seek a remedy.
Replacing Scalia with a Democratic appointee would have shifted this balance. The Roberts Court, almost always through 5–4 rulings, has been the most pro-business Court since the mid-1930s. Trump’s ability to replace Scalia poetends even stricter limits on access to the courts, especially to sue businesses.
Executive Power. It is difficult to predict how the Supreme Court, with a Trump appointee replacing Scalia, would rule if there were challenges to President Trump’s exercises of executive power; much would depend on his actions and their context. It shouldn’t be assumed that Trump’s actions would be rubber-stamped, even with a majority of the justices appointed by Republican presidents. In 1974, the Supreme Court unanimously ruled against President Richard Nixon’s Watergate-related assertion of executive privilege. Three Nixon appointees—Warren Burger, Harry Blackmun, and Lewis Powell—were part of the unanimous decision. Chief Justice Roberts, who seems quite concerned about the image of the Court, is likely to balk at it being perceived as a tool of any presidency. But the Court has had a mixed record of standing up to abuses of presidential power. During World War II, the Court upheld the internment of Japanese Americans from the West Coast and more recently ruled that the president could detain even United States citizens as enemy combatants.
These, of course, are all illustrations of the costs of keeping the ideological balance that existed before February 13. But what also must not be forgotten is the opportunity that was lost on November 8. A fifth justice appointed by a Democratic president—and the first Democratic majority on the Court since 1971—could have meant a majority that would have declared the death penalty unconstitutional, that would have reversed decades of decisions limiting the ability of victims of constitutional violations to sue governments and government officials, and that would have advanced racial and economic justice, by finding, for instance, a constitutional right to an adequate education.
Such are the costs of having President Trump appoint Scalia’s replacement. Roberts, Thomas, and Alito are all in their 60s and easily could remain on the court for another two decades. Ginsburg, Kennedy, or Breyer are more likely to leave the bench during Trump’s presidency. Since 1960, the average age at which a Supreme Court justice has left the bench is 78. Ginsburg is 83, Kennedy 80, and Breyer 78. How realistic is it to think all three of these justices still will be on the bench on January 20, 2021 (assuming Trump is a one-term president)?
If President Trump also gets to replace even one of these three justices, there will be a five-justice majority to move constitutional law in a far more conservative direction than it has been at any time since 1936. The probable consequences:
Abortion. I have no doubt that given the opportunity, Roberts, Thomas, and Alito would vote to overrule Roe v. Wade and allow states to prohibit abortions. Each has voted to uphold every restriction on abortion that has come before him on the Court. There is not a word that any of these justices ever has written or publicly spoken that would suggest the slightest hesitation about doing so. If Trump gets to replace both Scalia and one other justice, there will be a majority to end a woman’s constitutional right to reproductive autonomy.
This will leave the issue of abortion to each state. Many states already have laws on the books prohibiting all or most abortions, which would take effect immediately if Roe is overruled. The Michigan Supreme Court, for example, has ruled that the state law banning abortions will be effective if the Supreme Court ends the constitutional protection for abortion rights.
In other states, like California and New York, abortion will remain legal. Women with resources will be able to travel to these states for safe abortions. But it is poor women and teenagers who again will be left with the cruel choice between a back-alley abortion or an unwanted child.
Affirmative Action. In 2007, Chief Justice Roberts wrote a stunning opinion that was joined by three other justices in Parents Involved in Community Schools v. Seattle School District No. 1, in which he said that the Constitution requires that government always act in a color-blind fashion and thus all forms of affirmative action are unconstitutional. The Court, 5–4, declared unconstitutional the ability of local school districts to consider race as one factor in assigning students to schools so as to achieve racial diversity. Roberts’s opinion was joined by Scalia, Thomas, and Alito. Kennedy was the fifth vote to strike down the school districts’ use of race, but he did not go along with Roberts’s condemnation of all uses of race to benefit minorities, remedy past discrimination, and enhance diversity.
President Donald Trump speaks to Supreme Court justices during the inauguration on January 20, 2017.
Most recently, on June 23, 2016, the Supreme Court, in Fisher v. University of Texas, upheld the ability of colleges and universities to engage in affirmative action to benefit minorities and enhance diversity. Roberts, Thomas, and Alito vehemently dissented. Replacing Scalia with a conservative Trump appointee provides a fourth vote for their position, but if Trump gets to replace Ginsburg, Breyer, or Kennedy, that will end affirmative action in the United States.
Diversity in the classroom is essential. I have been a professor for 30 years now and have taught constitutional law in classes that are almost all white and in classes that are racially diverse. Discussing racial profiling by the police is a very different classroom conversation when there are African American and Latino men in the room who can talk powerfully about their experience of being stopped for driving while black or brown. Preparing students for the racially diverse world they will experience requires that they learn in racially diverse classrooms.
Nor are there realistic alternatives for achieving diversity without affirmative action. Because of historic and continuing inequalities in education, color-blindness in admissions would mean dramatic decreases in the number of African American and Latino students in colleges and universities across the country. Giving preferences based on social class fails to achieve racial diversity because there are many more poor whites than poor African Americans and Latinos, even if the percentage in poverty in the latter groups is larger.
Marriage Equality. On June 26, 2015, in Obergefell v. Hodges, the Court ruled 5–4 that laws prohibiting same-sex marriage infringe the right to marry and deny equal protection to gays and lesbians. As a result, there is marriage equality throughout the United States.
Donald Trump has said that the right to same-sex marriage is “already settled.” It is not clear why he believes a decision from the previous year is settled law, while a ruling from almost 44 years ago, Roe v. Wade, is not and should be overruled. It is tempting to think that our society has moved past the debate over marriage equality and has come to accept that gays and lesbians are entitled to equal treatment and equal dignity.
But one need only read the passionate dissents of Roberts, Thomas, and Alito in Obergefell to see that they likely would vote to overrule this decision in an instant. Roberts, in some ways the least reliable conservative of the three, for the first time in his years on the Court read a dissent from the bench in Obergefell, and it was angry in its tone and content. The result of overruling Obergefell would be that marriage equality is left to the states. Many will continue to allow gays and lesbians to marry, but some states surely will prohibit this.
Is this unduly bleak? It obviously is possible that Ginsburg, Breyer, and Kennedy all will remain healthy and still be on the Court at the end of the Trump presidency. Is it also possible that Trump nominees will not be so bad? After all, sometimes justices don’t turn out as expected, like David Souter, who was appointed by President George H.W. Bush. Occasionally, justices even change once on the bench.
Unfortunately, this is wishful thinking. Souter had been a justice on the New Hampshire Supreme Court and briefly on the First Circuit Court of Appeals, where his opinions gave no indication of his ideology. Every president since the senior Bush—Democrat and Republican—has taken great care to appoint a justice with a clear and predictable ideology, precisely to ensure no more Souters. As a candidate, Trump released a list of 21 possible Supreme Court nominees. All are very conservative and there is little chance that any would be the next Souter.
Nor do many justices have major ideological transformations once on the Supreme Court. Scalia was just as conservative when he died on February 13 as when he joined the Court in 1986. Thurgood Marshall was as liberal when he resigned as when he joined. There are occasional exceptions. Harry Blackmun was quite conservative when appointed by President Richard Nixon, but left the Court as one of its most liberal members. Felix Frankfurter was perceived as a liberal when President Franklin Roosevelt put him on the bench and later became a very conservative justice. But these are the notable exceptions. Relatively few people have major ideological transformations in their 50s, 60s, or 70s.
There remains the possibility that Democrats could try to use the filibuster to block a far-right Trump nominee for the Supreme Court. Democrats voted to change Senate rules to eliminate the filibuster for lower federal court judges, but the 60-vote cloture requirement still pertains to Supreme Court nominations. In the past, Democrats have refrained from using the filibuster to keep conservatives off the Court. There were 48 votes against Clarence Thomas and 42 against Samuel Alito, but in neither instance did the Democrats stage a filibuster. Perhaps the Republicans’ treatment of Merrick Garland might give Democrats the resolve to filibuster this time, especially in the event of a far-right nominee.
For example, one frequently mentioned name for the Scalia seat or a future vacancy is Federal Court of Appeals Judge William Pryor. Pryor has referred to Roe v. Wade as an “abomination” and said that abortion is murder and should be illegal even in cases of rape. He has said that gay sex should be prosecuted as a crime. When President George W. Bush nominated him for the United States Court of Appeals for the 11th Circuit, Democrats blocked his confirmation with a filibuster that ended when the Republicans threatened to change Senate rules to eliminate filibusters for judicial nominations. If Trump selects Pryor for the Supreme Court, Democratic senators should be poised to use the filibuster to block confirmation.
The problem, though, is that Senate Republicans, by majority vote, could change senate rules to eliminate the filibuster for Supreme Court nominations. Unless and until they do this, however, the filibuster remains the primary hope Democrats have for keeping very conservative individuals from being confirmed for the high court. The other alternative is to try to persuade a few moderate Republican senators that some nominees are just too far out of the mainstream. There aren’t many moderate Republicans in the Senate, though, and their willingness to buck their party on a Supreme Court nomination is uncertain at best.
The Trump presidency will also have a huge effect on the lower federal courts, of course, and there is no longer a filibuster option that could block confirmation of far-right federal district court and court of appeals judges. The Supreme Court last term decided only 63 cases after briefing and oral argument; the year before, it decided 66 cases. Lower courts obviously get the last word in the overwhelming majority of cases.
As of this writing, there were 117 vacancies on the lower federal courts, which amounts to about 14 percent of all federal courts of appeals and district courts. Trump will be able to fill all of these vacancies on taking office. Other vacancies, of course, will open over the next four years. It is easy to imagine that by January 2021, 20 percent to 25 percent of all federal judges could be Trump appointees.
How likely is it that the federal courts can serve as a check on Donald Trump? With both the Senate and the House controlled by Republican majorities, the federal courts may be the sole remaining source of checks and balances. The courts’ capacity to play that role, however, depends on the specific Trump policies. Some can be blocked through the courts, but there are other actions that no courts, whether the judges are liberal or conservative, are going to be able to stop.
In some instances, the courts have the clear ability to act. For example, as a candidate, Trump declared that he wanted any American accused of terrorist activities to be imprisoned in Guantanamo and tried there in a military tribunal. This is clearly unconstitutional, as Article III of the Constitution requires that all trials “shall be held in the state where the said crimes shall have been committed.” Trump has said that he wants to bring back torture as a way of gaining information from terrorists. If this occurs, courts can and should declare this unconstitutional and a violation of international law, though the federal courts had a dismal record of doing so when the Bush administration implemented a policy of torture under the infamous John Yoo memos.
Similarly, if Trump goes forward with his plan to bar Muslims from the country, my hope is that federal courts will declare this unconstitutional as discrimination based on religion and a denial of equal protection. Never should the government be able to presume a person to be more dangerous because of his or her religion or race or national origin. Here, too, though, the law is uncertain, as there are cases that give to the federal government broad power to decide who gets to enter the country. Still, such discrimination based on religion should be deemed beyond the bounds of constitutional acceptability.
But there are other areas where courts will be powerless to stop Trump. For instance, the Supreme Court has held that the federal courts cannot hear challenges to a president’s unilateral rescission of a treaty commitment. In Goldwater v. Carter, in 1979, the Court rejected a challenge to President Jimmy Carter’s rescinding the United States’ treaty with Taiwan as part of his recognizing the People’s Republic of China. The Court said that a challenge to this by Arizona Senator Barry Goldwater was a “political question” and not for the courts to resolve. As a result, President George W. Bush was able to rescind the Anti-Ballistic Missile Treaty with Russia without any possibility of a judicial challenge. Thus Trump, if he wishes, could rescind the United States’ acceptance of the Paris Agreement on climate change, the deal with Iran, and most trade accords, and no court could prevent this.
Likewise, Trump can repeal any executive orders issued by a prior president. Trump already has made clear that he plans to rescind President Obama’s executive orders with regard to immigration, Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA), the latter of which has been blocked by a nationwide preliminary injunction issued by a federal district court. No court can stop Trump from rescinding these orders. Similarly, Trump can and likely will rescind the Obama executive order limiting greenhouse gas emissions from coal-fired power plants, a key aspect of complying with the Paris climate change agreement.
As a candidate, Trump repeatedly promised to deport those who are unlawfully in the United States. Control of immigration and deportation is very much vested in the executive branch of government. There are some requirements imposed by due process and administrative regulations, but basically the president has great control over how to enforce immigration law and whom to deport.
Changing regulations adopted by federal administrative agencies is more complicated, generally requiring those agencies to post notices of their proposed actions and allow time for comments. It will take some time for Trump to replace agency heads and have them go through the rule-making requirements. But a multitude of federal rules are sure to be changed. For instance, the Consumer Financial Protection Bureau, a target of business and conservatives, will likely rescind many of its regulations that were adopted to protect consumers.
Other actions that Trump promised will require congressional action. Repealing the Affordable Care Act will take an act of Congress. Building a wall across the Mexican border would require congressional approval and funding (and acquiring property and dealing with environmental rules if the wall is actually to be built—though Congress could repeal those rules or exempt the wall from complying with them).
All this paints a bleak picture of the next four years, but it also shapes an agenda for action. There must be mobilization to pressure Democratic senators to filibuster against far-right nominees to the Supreme Court. There must be concerted efforts, including by filibuster, to block undesirable federal legislation. When possible, Trump executive actions need to be challenged in the courts.
It will be important to look for areas where state governments can act in the absence of federal regulations. Unless there is preemption by federal law, state and local governments can provide more rights and protections than provided by the federal government. For example, states—as California already has done—can adopt stricter restrictions on greenhouse gas emissions than required by federal statutes and regulations.
States can increase their minimum wages, even with a Republican Congress and a president unwilling to do so via federal law. States can prohibit employment discrimination on the basis of sexual orientation, even though the Republican Congress is unlikely to pass such a federal statute.
States can create their own health-care systems designed to ensure that virtually all within their borders have medical insurance coverage. After all, Obamacare was based on a similar approach adopted in Massachusetts. States could even adopt a single-payer health-care system. The difficulty, of course, will be fiscal, and in whether states can afford this in the absence of substantial federal aid.
If the Supreme Court becomes substantially more conservative because of the departure of Justices Ginsburg, Kennedy, or Breyer, state governments and state courts can provide protection for the rights that are lost at the federal level. States could protect the right to abortion if Roe v. Wade is overturned and could ensure marriage equality if Obergefell v. Hodges is overruled. Of course, this would mean that the fight for these basic rights would have to be fought in every state, and in many, the battle almost surely would be lost.
We thus must be prepared to mobilize and organize opposition to the right-wing Trump nominees for the cabinet, the Supreme Court, and the lower federal courts, and against undesirable legislative and administrative changes. Ideally, this mobilization can block some harmful actions and can provide a basis for changing Congress in 2018, and the presidency in 2020. The alternative, eight years of a Trump presidency, is too frightening to imagine.