A Tale of Two Supreme Courts: This election determines high court’s future

The most lasting legacy left by the winner of November’s presidential election will likely involve the Supreme Court. Justice Antonin Scalia’s death left one seat vacant on the Court, and there currently are two justices—Anthony Kennedy and Ruth Bader Ginsburg — who are more than 80 years old. The new president could appoint two or three justices to the Supreme Court, altering its ideological makeup for decades to come.

Two factors determine the Supreme Court’s effect on American society: the justices who decide the cases and the cases the justices decide.

{mosads}The most immediate question going forward is whether Scalia’s seat will be filled and, if so, by whom. If Donald Trump is elected president and Republicans retain control of the Senate, the answer is fairly simple. Trump has indicated that he will appoint someone who is like Justice Antonin Scalia in his or her judicial philosophy, that is, someone who makes decisions based on constitutional text and tradition. Such an appointment would maintain a rough ideological balance on the Supreme Court.

If Hillary Clinton is elected, the answer is more complicated. When asked in the third debate what kind of justice she would nominate, Clinton never mentioned the Constitution, but instead said she would nominate someone who would oppose “powerful corporations and the wealthy” and stand up for “women’s rights” and “rights of the LGBT community.”

Clinton confused judges with legislators when she promised to appoint a Court that “represent[s] all of us.” By “us,” Hillary does not mean supporters of traditional marriage, gun owners, pro-lifers, or political opponents. She even promised to appoint justices who would overturn the Supreme Court’s 2010 decision in Citizens United, which upheld the free speech rights of a conservative political group to broadcast a video critical of a presidential candidate, who happened at the time to be Hillary Clinton.

For Clinton, the ideal justice is one who decides cases based on the litigants’ identity or status, not what constitutional or statutory text requires. Her appointees would be hard pressed to take the oath for Supreme Court justices, by which they swear to “administer justice without respect to persons” and to “do equal right to the poor and the rich.” The rule of law requires that the little guy wins when the law favors him, while big corporations win when the law favors them.

Given Clinton’s promise to appoint justices who will protect her favored groups rather than uphold the rule of law, Senate Republicans could refuse to confirm any nominee she sends over.

Democrats, of course, would complain that the Senate is violating the Constitution by withholding confirmation of Clinton nominees. But they would be wrong.

The decision about who is going to serve on the Supreme Court is too important to leave to just one political branch. That’s why the Constitution specifically commits the selection of a new justice to the political process in which both the President appoints and the Senate gives or withholds consent. It provides no legal standards by which to measure that process.

This means that the Supreme Court could retain its current makeup of eight justices throughout a Clinton presidential term or perhaps become even smaller if a current justice retires or dies.

There is no constitutional requirement that the Supreme Court have nine justices. The Court had only six justices when established by the Judiciary Act of 1789.

Some think a smaller Supreme Court might be less prone to turn important political and social issues into constitutional ones and allow the justices to impose their own policy preferences under the guise of constitutional decision making. In a six-justice Court, for example, major changes to the meaning of the Constitution or federal laws would require a two-thirds majority (4-2), as opposed to the narrow 5-4 margins that gave us the right to same-sex marriage and reaffirmed the right to abortion—neither of which are mentioned in the Constitution. With an even number of justices, tie votes do not create “landmark” national precedents, but merely affirm lower court decisions in limited jurisdictions.

The Senate’s refusal to confirm Clinton nominees also would help maintain the Supreme Court’s current ideological makeup. Four justices were appointed by Democrat presidents, and four were appointed by Republican presidents. If Clinton fills one or more vacancies, the Supreme Court will lurch to the left. Democratic appointees vote in lock step to advance progressive values.

Unlike their Republican-appointed counterparts, there’s never any doubt how Democrat-appointed justices will vote in cases involving LGBT rights, abortion, immigration, affirmative action, big government, and other liberal causes.

The Supreme Court’s trajectory after the election also will be determined by the cases it decides.

So far, the 2016-17 term mostly lacks the blockbuster-type cases involving same-sex marriage, abortion, immigration, affirmative action, and Obamacare the Court has decided the last few years. It has declined to hear important cases involving free speech, gun control, and the power of administrative agencies. The justices likely are waiting to see whether Scalia’s successor is confirmed. Even if a new justice is installed, it probably will be too late to see any real increase in the Court’s current caseload.

There are two exceptions that could broadly impact Americans. The first is the transgender case from Virginia, in which the Supreme Court will review the Obama administration’s interpretation of federal education law to require schools to permit transgender students to use restrooms, locker rooms, and other changing facilities according to their gender identity. The Court’s decision could have far-reaching effects on privacy rights in schools nationwide.

And, since Obama is pushing the same interpretation of federal employment law, it could have the similar effects on private businesses, including restrooms in stores, restaurants, and movies and changing facilities in local health clubs.

The other case will answer whether the government can exclude churches from broadly-available public aid programs simply because they’re religious. A ruling against the church could sanction further instances of religious discrimination, especially when churches don’t conform to the LGBT agenda, further eroding our already-tenuous constitutional protections for religious freedom.

The upcoming election could abruptly change in the role of the Supreme Court in American life going forward, at least over the next four or eight years. We will have a better idea about what that change will be in less than two weeks.

Wallace is a constitutional law professor at Campbell University School of Law in Raleigh, North Carolina. The views expressed are his own and not attributable to Campbell University. Follow Campbell Law on Twitter @CampbellLawSBA

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