The Supreme Court’s generally conservative orientation is safe for the next four years and probably longer. That is the upshot of Donald Trump’s stunning upset victory in the presidential election for the third branch of the federal government, with the other two branches also in Republican control.
Democrats’ hopes for a liberal majority on the Supreme Court were dashed. Worse, the Democrats’ basic premise that Republicans would pay a price for obstructing President Obama’s nomination of veteran federal appeals court judge Merrick Garland for the high court was proven to be wrong, flatly wrong.
For eight months, Democrats and their liberal and progressive allies had rallied in Washington and in state capitals around the country chanting to Republican senators, “Just do your job.” On Tuesday, however, only two incumbent Republican senators were defeated, including one, Illinois’s Mark Kirk, who had favored a hearing and vote on the Garland nomination.
Among the other Republicans targeted in the campaign, New Hampshire’s Kelly Ayotte appears to have been defeated by Democrat Maggie Hassan by a razor-thin margin of 700 votes. But Pennsylvania’s Patrick Toomey and North Carolina’s Richard Burr, among others, won re-election handily as their battleground states went into the Trump column.
Meanwhile, exit polls indicated that Supreme Court appointments were a more important factor in the presidential election than in either 2008 or 2012 and were somewhat more important for Trump voters than for those voting for Hillary Clinton. The “Supreme Court important” voters appear to have split almost 3-to-2 for Trump.
Americans born since 1969 have never known a Supreme Court with a majority of liberal justices. Admittedly, Warren Court holdovers helped provide the crucial votes for two final bursts of liberal activism: the 1972 decision to abolish capital punishment and the 1973 abortion rights decision, Roe v. Wade.
Republican-appointed moderates helped forge the majorities in those two cases, but conservatives gradually gained their footing in the 1970s and then solidified their control with new appointments in the 1980s. The court has moved to the right under three successive Republican-appointed chief justices: Warren E. Burger, William H. Rehnquist, and, now, in his 11th term, John G. Roberts Jr. The court’s jurisprudence has shifted to the right on an array of issues, including abortion regulations, affirmative action, church-state relations, consumer and worker rights, criminal law, and states’ rights vis-à-vis the federal government.
True conservative activists view this history differently as one of successive defeats and disappointments. Among many examples, they cite as the most grievous the two Roberts Court decisions upholding the Affordable Care Act, with Roberts in the majority, and the 5-4 decision recognizing marriage equality for same-sex couples, with the moderate Republican Anthony M. Kennedy providing the critical fifth vote.
The court would have tipped somewhat to the left if Garland, a moderate liberal in 19 years on the D.C. Circuit, had won confirmation to succeed the conservative lion Antonin Scalia after his death in February. But on the very day of Scalia’s death, Senate Majority Leader Mitch McConnell audaciously vowed to hold the vacancy open until after the presidential election.
McConnell’s tactic succeeded, and sets an ominous precedent for the next time a Supreme Court vacancy occurs with the White House and Senate in opposite political hands. Despite a somewhat narrowed 52-48 majority, Republicans still control the Senate for the next two years. And Democrats will be challenged just to hold ground in 2018 as they will be defending 25 Senate seats compared to only eight for Republicans.
Trump released a list of potential Supreme Court nominees back in May, at a time when many conservatives doubted his ideological bona fides. The list, later expanded to 20 but now pulled from Trump's web site, consisted of Republican-appointed judges from federal or state courts, all of them regarded by court watchers as fairly reliable conservatives.
The eight federal circuit court judges on the list include, for example, the Tenth Circuit’s Timothy Tymkovich, who wrote that court’s 5-3 decision in the Hobby Lobby case allowing religiously-motivated private employers to get out of the Obamacare’s contraception mandate. The oldest of the group at age 60, the Coloradan Tymkovich might be passed over for someone younger who could be counted on to serve for a quarter-century or longer.
Among nine state supreme court justices, Texas’s Don Willett is the most visible, thanks to the libertarian persona he projects through his judicial opinions and his popular Twitter account. Other state justices include Michigan’s Joan Larsen, an ex-Scalia law clerk who spoke at a memorial for the late justice in Washington in the spring.
Before Trump’s upset victory, political Washington was speculating whether he might win lame-duck confirmation to guard against the risk of Hillary Clinton’s picking a more liberal justice if elected. With that contingency off the table, Garland is now likely to go down in history as the most qualified Supreme Court nominee in history never to win confirmation.
Even with a Trump justice to fill the vacancy, the new president will fall short of the goal he laid out in the campaign to try to overturn the marriage equality and abortion rights decisions. With four liberal justices and Kennedy, those precedents are safe for now. And the liberal justices Ruth Bader Ginsburg and Stephen G. Breyer will surely defer any thoughts of possible retirement. And, as a postscript, the state votes on Tuesday in favor of the death penalty in California, Nebraska, and Oklahoma make it extremely unlikely that Kennedy will lend his vote to outlawing capital punishment altogether.