Supreme Court Appointments

What is the future of the Court under Donald Trump or Joe Biden?

Go straight to The Bottom Line

REUTERS/Carlos Barria

The death of Justice Ruth Bader Ginsburg, and the Senate’s expedited confirmation on October 26th, a week prior to election day, of President Trump’s nominee to replace her, Amy Coney Barrett, has put the future of American democracy at a crossroad. Campaign tensions were running high even before this legal icon died, but now that one of the two likely Supreme Court vacancies of the near future (Stephen Breyer is 82) has already taken place, the Court’s composition and influence on the nation is casting an enormous shadow over this election. The Court’s longstanding balance – an even number of conservative and liberal judges and a centrist as the swing vote between them – has very likely come to an end.

Supreme Court justices hold lifetime appointments. President Trump had previously added two conservative and relatively young justices, Neil Gorsuch (53) and Brett Kavanaugh (55), reinforcing the conservative side of the bench for many years to come. At 48, Amy Coney Barrett is the youngest woman and one of the youngest justices ever to be appointed to the Court, and as she is replacing perhaps the Court’s most liberal member in Ruth Bader Ginsburg, the Court will inevitably veer substantially to the right, for what may well be more than a decade. And, decisions made by such a one-sided court will affect generations of Americans to come.

All of this is of course deeply contentious—especially in the context of the Republican party’s refusal to consider President Obama’s nomination of Merrick Garland eight months before the end of his second term, which enabled President Trump to nominate Justice Gorsuch. From nearly the moment of Justice Ginsburg’s passing, Senate Republicans were unwavering in their position that the “let the voters decide” precedent they had established in 2016 would not apply in 2020. Furthermore, Trump also made it clear that he wanted to fill the seat before the election because he felt the election process, and its results, would end up in the Supreme Court. It remains to be seen whether Justice Barrett will recuse herself from participating in election-related decisions, due to the potential for either real or perceived, bias favoring the man who so recently appointed her. 

A second Trump term, particularly if the Republican Party retains control of the Senate, would extend Senate Majority Leader Mitch McConnell’s years-long effort to move the entire federal judicial bench – hundreds of circuit and appeals court judges – hard to the right. This would risk turning the judiciary—one of the three independent branches of U.S. government—into an arm of the executive branch. The system of checks and balances that was so painstakingly woven into the Constitution would face tremendous pressure, if it continues to exist at all.

How will the Supreme Court’s decisions in coming years affect the lives of everyday Americans? Here are just a few key issues that will likely come before the Court:

Climate Change and the Environment
The Trump administration has rolled back or weakened a long list of environmental regulations  — some going back several decades – governing clean air, water, and toxic chemicals. Many of these rulings will be contested and are likely to end up in the Supreme Court.

Social Security
It’s no mystery that so-called entitlement programs, such as Social Security and Medicare, have financial challenges. In fact, past administrations, both Democratic and Republican, have explored ideas to privatize Social Security as a way to relieve the government from the burden of funding it. The Trump administration has also moved in that direction in subtle ways—for example, funding recent unemployment benefits via a holiday in the payroll tax, which is a key source of funding for such programs. Significant changes for these programs will also eventually find their way to the Supreme Court.

Reproductive Rights
If your main interest in the Supreme Court is to outlaw abortion, and that is your “deciding” issue for this election, then your choice of candidates is obvious. Now that Trump’s nomination to succeed Justice Ginsberg is approved, the Court may already be positioned to declare Roe v Wade unconstitutional. A second Trump term might well result in further deepening the Court’s conservative tilt (if Justice Breyer retires or passes away), virtually locking in the end of federal protections for women’s reproductive rights.

Voting Rights
Though the Voting Rights Act was established 55 years ago, voter registration is still compromised by suppression tactics today, and in fact is getting worse, due to the Roberts Court’s decision to relax the Act’s requirements. What’s more, mail-in voting has been challenged by unfounded claims of a high risk of fraud. Though President Trump and his wife have both recently voted by mail, he has objected to mail-in voting, declaring that “you’d never have a Republican elected in this country again.” Litigation around the Voting Rights Act is likely to be contested in the Supreme Court in the coming years.

Gun Safety
The Trump administration has indicated an interest in reforming U.S. gun laws and has invited the families of the Parkland, Florida, school shooting to the White House. Yet the only concrete action the administration has taken was to place a narrow ban on bump stock accessories.

In fact, Trump seems to have reversed his position during the campaign, doubling down on his scare-tactic rhetoric to claim that Joe Biden will confiscate the guns of law-abiding citizens – an entirely unfounded claim. Biden has played a role in passing some common-sense gun safety regulations, such as the Brady Handgun Protection Act, and his platform includes a call to bolster background checks and to ban high-capacity, military-style weapons for civilian use. These steps have significant majority-opinion support by Americans, as is described in the Gun Safety issue-page on this website.

Given the strength of the country’s gun lobbies (despite the NRA’s current financial and legal problems), gun legislation is another issue that will eventually be elevated to the nation’s highest court.

Regaining Balance
In early September this year, Trump declared that if Biden is elected, “Radical justices will erase the Second Amendment, silence political speech and require taxpayers to fund extreme late-term abortion.”  Mitch McConnell, reversing his position in 2016, pushed hard to fill Justice Ginsburg’s seat as quickly as possible despite the upcoming presidential election.

Biden’s approach stands in stark contrast. On September 20, he reached across the aisle—as he often did during his career as a U.S. Senator—to appeal to his Republican colleagues: “Don’t go there,” he said.  “Uphold your constitutional duty, your conscience, let the people speak, cool the flames that have been engulfing our country. We can’t keep rewriting history, scrambling norms, ignoring our cherished system of checks and balances.”

The Bottom Line

Though we can’t know for sure who Biden would nominate to the Supreme Court, it is fair to say that any candidate he puts forward would at least begin to restore the balance that the Supreme Court has enjoyed since the 1960s. That balance – four Justices who lean conservative or liberal and one Justice in the center as the “swing vote” – has produced a set of decisions that, it could be argued, represent the heart of a functioning democracy, because they equally enrage or bring joy to partisans on both sides. Voters in this election – particularly voters who don’t lean vigorously left or right and are happiest when there is some balance of power and viewpoint – should understand the decades-long stakes for their vote this fall. The Court now has a 6-3 Conservative majority, bringing this era of balanced decision-making to a likely end. A second term for Trump and an opportunity to build a 7-2 or 8-1 majority would put the Court out of any kind of alignment with at least half of the American electorate for decades to come.