What will Trump’s victory mean for the Supreme Court?

As an American lawyer, my immediate reaction to Donald Trump’s stunning upset victory was not to ask what this would mean for our relationship with Vladimir Putin, or whether the US will withdraw from NATO, tear up trade treaties or even build a wall across our border with Mexico. I thought of the Scalia seat on the United States Supreme Court.

Justice Antonin Scalia died unexpectedly in February this year and the Republican-dominated Senate refused to consider Obama’s nominee, Merrick Garland. The seat has been empty since then. The justices of the Court have great power but are not disinterested umpires; increasingly, when it comes to hot-button issues, they are voting along partisan lines. Currently there are four conservatives and four liberals. But with one empty seat and two elderly liberal justices, Trump’s appointments may shape US politics for a generation.

In accepting Trump’s offer to be his running mate last July, Vice-President elect Mike Pence said: “And where Donald Trump will appoint justices like the late Antonin Scalia, who will uphold our Constitution, Hillary Clinton will appoint Supreme Court justices who will legislate from the bench, abandon the sanctity of life, and rewrite our Second Amendment.”

As Governor of Indiana, Pence was so enamored of Scalia, who died last February, that he re-named an interstate highway known as I-69, the “Antonin Scalia Throughway.”

Pence’s pledge, echoed repeatedly by Trump in the course of the campaign, was to fill Scalia’s seat with a rock-ribbed conservative who would, among other things, strike down the landmark decision that gave women abortion rights, Roe v Wade (Trump in the debates said his appointee would do so “automatically”), and resist any crackdown on private ownership of guns, even on sophisticated semi-automatic weapons such as the AR-15—the gun used in the San Bernardino terrorist attack. The Supreme Court in the Heller case, decided in 2008 when Scalia was active, held that the Second Amendment “right to keep and bear arms” clause provided an unfettered right to own a handgun in your home. As Scalia saw it, that’s what they did in 1791 when the Second Amendment was ratified.

As I have written in my new book, Supremely Partisan—How Raw Politics Tips the Scales in the United States Supreme Court, the Court became intensely politicised with the appointment of Justice Scalia in 1986, and when it came to hot-button issues such as guns, gays and God, the nine-member bench broke down neatly 5-4 along partisan lines.

On the matter of interpreting the Constitution, Scalia was a textualist and an originalist. He believed that the judge must start with the text, and interpret its meaning in accordance with the original understanding of the eighteenth century framers, notably James Madison and Alexander Hamilton.

He abhorred the idea of a “living Constitution,” followed by the liberal wing of the Court, led by Ruth Bader Ginsburg. He used to say, “dead, dead, dead” in explaining his opposition to the notion that there are “new rights” found in the fabric of the Constitution which evolve over the course of time. Thus his interpretation, for example, that capital punishment of minors was constitutional under the Eighth Amendment’s “cruel and unusual punishments” clause because society executed minors for capital crimes in the eighteenth century. Fortunately, his view did not prevail, and the Court decided 5-4 in 2005 to prohibit the execution of juveniles.

During the campaign, Trump furnished a list of 21 judges, with experience in either the state or federal courts, from which he would nominate the next justice. This person will presumably be a Scalia clone. With control of the Senate narrowly remaining with the Republicans, his nominee should sail through unless the Democrats launch a filibuster—as some Republican senators vowed to do if Clinton was elected. The list consisted of conservatives in the Scalia mold. One of them on the shortlist, Bill Pryor of Alabama, a Catholic federal judge on the Court of Appeals for the Eleventh Circuit, had publicly stated that he viewed Roe v Wade as an “abomination.” Another on Trump’s most recent shortlist, Republican Senator Mike Lee of Utah, said he wasn’t supporting Trump and wasn’t interested in the job. The others, a laundry list of state and federal judges, included a few women and minority candidates. They all appeared to come from “swing states” that Trump thought he had to win to ensure an eventual presidential victory.

The addition of a “Scalia clone” is not too worrisome as the 5-4 divide in the Court will be continued. The real game-changer is that additional vacancies may occur in the next four years through death or retirement, and the current Judges filling these spots are liberal (except for Anthony Kennedy who often votes with the liberals on abortion and gay rights issues). These justices may not want Trump to replace them on the Court.

Trump’s announced policies may well present challenges to the Court—even to conservative justices whom he appoints. Many of his stated policy proposals are plainly unconstitutional, such as compromising the national debt, allowing public officials to sue for libel more easily, deporting natural-born American citizens because their parents are undocumented, summarily executing a soldier for a desertion he is not even charged with, excluding Muslims from the country, and abridging their civil liberties. Only a strong Supreme Court will stand between this authoritarian figure and the erosion of well-settled constitutional rights.

Then, there is the issue of identity politics. The Court at the moment is 100 per cent minority. It consists of five Catholics, three Jews, an African-American, three women, one of whom is a Latina. Of the 112 justices appointed to the Supreme Court since 1789, 89 have been white Anglo-Saxon Protestants. We will have to see whom President Trump decides to add to the stew before drawing any definite conclusions.