By Melinda Nilsson
Donald Trump has finally been inaugurated, after months of post-election controversy. Since he was announced president, we have seen many outbursts on Twitter, controversial phone calls, and an executive order banning immigration from certain predominantly Muslim countries.
Due to the resistance from Republican senators to confirm Barack Obama’s Supreme Court nominee Merrick Garland (for an unprecedented total of 293 days), the Supreme Court will have a conservative majority. This was clear the moment Trump was elected – the question of the matter has instead quickly shifted from “will there be a conservative majority?” to “how large will it be?”.
Long-time liberal justices Ruth Bader Ginsburg and Stephen Breyer are thought to be close to retirement. Should that be the case, Trump would be able to secure a strong conservative majority in the court for years to come. This could have huge implications on legislation, if Trump were to base these picks on his campaign rhetoric.
In that case, we can expect a right-leaning court to be more inclined to take up issues such as abortion, as Trump said he would select pro-life justices. Bader Ginsburg is the Court’s most vocal advocate of women’s right to abortion. Breyer has also been a pro-choice justice, and if both of them were to leave the Court this could have serious implications on abortion law. Trump has openly criticized Roe v. Wade, the historic Supreme Court decision which strengthened abortion rights, saying that when the Senate confirmed his Court nomination it would be overturned “automatically”. This would not be possible, however, as some judges were quick to state when Trump gave his future predictions during the third presidential debate in October. But the ruling would certainly be an object of debate in the Court.
The loss of Bader Ginsburg in the Court would also mean one less international advocate. The Justice is known for advocating that the Supreme Court should look to foreign interpretation of law, and has done so throughout her career. If Trump’s nominees share his isolationist tendencies, we could see American law shying even further away from international judicial practice.
So what will Democrats do about the impending appointment, and those that look likely to follow? Democrats in the Senate are sure to be bitter that Barack Obama’s appointment of judge Merrick Garland was blocked by Republicans. The question is whether they will attempt to filibuster the confirmation of a new conservative justice, if the person is not to their liking. Filibustering is the practice of delaying or preventing an entire vote. Granted, none of the candidates on Trump’s list are preferred by Democrats, but since the option to filibuster is a radical one, they may consider it only for the candidates they deem utterly unacceptable.
This could, however, trigger the Republicans to eliminate the option of filibustering in debates for appointments to the Supreme Court, an option that has already been removed in the lower courts. Trump has shown support for using this so-called nuclear option for the Supreme Court appointments as well. If this were to happen, Democrats’ chances to influence the Court would disappear, and their best hope would be if one of Trump’s appointments turned out to act differently than he expected. It would not be the first time. There is historic precedent of presidents misjudging their nominees’ political identity – one example being Eisenhower’s two appointments strengthening a liberal Supreme Court, something he later claimed to be the two biggest mistakes of his presidency.
Attempting to predict Trump’s Supreme Court appointments is rather easy – we have seen the short list for one of his court appointments, and if there are to be more we can expect those lists to be similar to the first. However, predicting the political ramifications of such a court is a harder task. We will not really know just what the possible appointees will do in court until they are sworn in. But we do know that they will come to be major forces in the American legal system for many years to come.
By Melinda Nillson
Illustration by Agnes Björk