His appointments could shape US politics for a generationby James D Zirin / November 11, 2016 / Leave a comment
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…