The Supreme Court: What Happens Next

Is it possible this election will turn on the issue of appointments to the Supreme Court?
I doubt that this election will turn on any single issue. It is certainly true, however, that for certain segments of the population Supreme Court appointments will play a role in their support or opposition to a particular candidate. And it is also true that the outcome of the election, both as to the president and the Senate, will have a major effect on the future direction of the Supreme Court.

How many Supreme Court openings do you expect the next president will have to fill?
It’s reasonable to conclude that Justice Antonin Scalia’s position will be one. There could be three or four others because of the age of the justices. Usually they try to time their retirement so that two don’t retire at the same time. But there are several justices in their 70s and approaching their 80s who are potential retirees. And I hate say it, but they could die. The next president probably will have the opportunity to appoint three, maybe even four justices in the next four years. That would be surprising, but it’s possible.

What kind of nominations to the Supreme Court do you expect to see from Hillary Clinton, the Democratic Party presidential nominee, if she is elected president?
I think two of the factors shaping her appointments would be gender and racial diversity. They have been big issues for her throughout her career. I would also expect some of her appointees will have a civil rights orientation, given her background with children’s rights and women’s rights. But I also think her appointments would be pretty pragmatic people. I don’t consider Clinton a leftist. She’s more in the center-left of the Democratic Party, and I think she would appoint people like that. I don’t see her radicalizing the Supreme Court, but she would nudge it toward the left. In lower courts, I think there would be a wider range of persons appointed.

And from Donald Trump, the Republican Party nominee?
I am completely baffled by that. He clearly does not respect the Article III judiciary and doesn’t understand judicial independence. I imagine he would appoint people kind of in the mold of Chief Justice John Roberts and Justice Samuel Alito. I don’t think it’s unfair to say that Trump is completely unpredictable in terms of the kind of person he’d appoint and what he’d expect of them.

What do you mean by the “Article III judiciary”?
I’m referring to Article III of the Constitution [which deals with] federal judges appointed with life tenure by the president, pursuant to the Constitution, approved by the Senate. They play a special role in our governmental system as a check on the executive and legislative branches, and as a check on the states. I think it’s important that a president appreciate that very delicate function. When a court declares an act of Congress or action by the president unconstitutional, it’s a stunning thing. It’s not a usual thing. The judges have to be brave and stand up for what they believe is the correct interpretation of the law or the Constitution. So you need a particularly strong and independent type of person for that job. You need the president and the Senate to understand that.

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Hillary Clinton has pledged to overturn the case known as Citizens United, about corporate and union financing of elections, possibly through a constitutional amendment. But a president cannot start the process to ratify a constitutional amendment. Would her only hope be to pass legislation that would end up before the Supreme Court because, presumably, it would conflict with the current law of the land?
The only practical way Hillary Clinton could “overturn” Citizens United would be through appointments to the Supreme Court, keeping in mind that appointees often do not perform according to prediction. Efforts to overturn Roe v. Wade through appointments failed despite the fact that a sufficient number of anti-Roe justices were appointed to the court. Of course, a president could try to influence Congress to propose a constitutional amendment, but given the current composition of Congress that seems an unlikely prospect.

Is there any sign that Donald Trump will propose legislation intended to reverse existing Supreme Court rulings, and what would that legislation address?
There is always this possibility, but absent a change on the Supreme Court, predictable unconstitutional legislation will most likely be struck down.

Are there areas of the law that you believe the court will be asked to rule on in the next four years, even if particular cases are not on the docket now?
That’s hard to predict. But I think there could be more death penalty cases and continuing controversies over the Second Amendment right to bear arms. Depending on who replaces Justice Scalia, the 2008 District of Columbia v. Heller case [which dealt with the individual’s right to bear arms especially in regard to self-defense within the home] may be altered in some way. It would not be surprising to me if cases involving transgender rights started percolating up to the Supreme Court, which has already gotten involved in one case. Certainly issues involving immigration and presidential power will be revisited regardless of who is the president.

Do technological advances sometimes bring an entire new area of casework into the court?
Absolutely. Technological advances have had a major impact on copyright and patent laws. Drones, drone technology, search-and-seizure, fourth amendment issues will all percolate up to the Supreme Court.

Speaking historically, have presidents generally been successful in nominating Supreme Court justices who voted on cases as expected?
There is no pattern. Some justices have acted according to plan, Clarence Thomas, for example. Others have not, Earl Warren being a notable example.

Appointments change the direction of the Supreme Court, but can the nation’s politics change the direction of the court as well?
Yes, no question about it. Politics affects the court because the justices read the newspapers, and they are aware of what’s going on. Look at the same-sex marriage cases. The interaction between the same-sex marriage movement and those opposed to it, along with the media coverage of the issue — all of that filtered into the court’s opinions. There’s no question that Justice Anthony Kennedy, one of the main authors, felt that push. The Supreme Court is not an aloof body that decides the actual true meaning of the Constitution. They’re in the tug-and-pull of politics.