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Potential long lasting impact of President-Elect Trump on the US Supreme Court

5. 12. 2016  |  Sasha Štěpánová

Since the results of the US election, much has been made of the ideological, political, economic and business implications of President-elect Donald Trump’s tenure in the White House. However, although a presidential term is 4 years and no president can serve more than 2 terms, giving a maximum of potentially 8 years in office, it is in fact in the legal/judicial sphere that a Trump presidency may leave its most long lasting legacy, one of potentially decades.

The constitution of the United States gives the US president the power to nominate justices to the US Supreme Court, the highest court in the land and the battleground on which issues of states rights, individual rights vs. government, civil rights etc. are duly fought.  Article II, section 2 of the Constitution provides that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court.”  Although presidential nominees to the Supreme Court must go through a grueling Senate hearing process, the end result of nomination by a sitting President is that justices on the Supreme Court are generally identifiable along ideological lines of appointment by a particular president.

In February 2016, the death of Justice Antonin Scalia left a seat vacant on the Supreme Court and despite President Obama proposing a successor, the Republican senate refused to hold a confirmation hearing and the seat remains vacant …. And thus one of the first acts of a Trump administration will be to appoint a Trump selected Justice to fill the vacancy.

Until the vacancy is filled, in difficult ideological cases, the court may evenly split 4-4 and in such cases, the effective functioning of the court is impaired, as in such event, the decision of the lower court stands. Currently, the composition of the court is evenly split between conservative justices appointed by Republican presidents (Kennedy, Roberts, Thomas, Alito) and liberal justices appointed by Democratic Presidents (Ginsburg, Sotomayer, Breyer and Kagan).

In its recent history, the Supreme Court has decided a number of high profile cases by a slim 5:4 majority a small selection are highlighted below:

In 2014, the Court held, on a 5:4 vote that privately held businesses, on the basis of religious beliefs of such a company, could be exempt from the Obamacare health insurance requirement that provided insurance cover for contraception. Justice Ginsburg, in her dissent, noted that “The Court’s expansive notion of corporate personhood invites for-profit entities to seek religious based exemptions from regulations they deem offensive to their faiths”.

In 2007 and 2010, again in a 5:4 split, the Court held that the Second Amendment of the U.S. constitution, ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."), in fact applied to individual and not militia, thus rendering gun control more difficult.

In 2010, the Supreme Court overturned a corporate and union political campaign spending ban, in place for many decades, by a 5:4 decision. Corporations and unions were now without any limits on how much money they could spend on political donations. In 2014, the Court extended this to allow for unlimited individual contributions, also by 5:4.

The potential for President Trump to fill one seat on the Supreme Court may not seem remarkable, but given the advanced age of the other judges, there is a strong possibility that if certain other Justices decide to retire, President Trump might have the opportunity to appoint a total of 2-4 justices whilst in his first term as President.  For example, Justice Ruth Ginsberg is 83, Justice Anthony Kennedy is 80 and Justice Stephen Breyer is 78.  The average age for retirement of Supreme court justices is generally around 79.

It is not only the political flavor of Trump’s potential nominees to the Supreme Court that may cause controversy. Controversy arose from the heart of the bench itself early this year, when Justice Ruth Ginsburg, during an interview with CNN, said of Trump “He is a faker. He has no consistency about him”.  Justice Ginsburg subsequently apologized for her comments, but in matters of rule of law, were the court to rule on a matter involving the Trump administration, the issue as to whether Justice Ginsburg should sit in such a case might potentially be challenged by a Trump administration.

During his campaign, Donald Trump, when asked, stated that the famous 1973 Roe v. Wade abortion rights decision of the Supreme Court would be “automatically overturned” if he was in the Oval Office.  A President cannot of his own accord, overturn a decision of the Supreme Court, but should he have the opportunity to appoint more than one justice during his term in office, he will have the ability to influence the daily lives of US citizens and corporations in many different spheres, for a very long time after he leaves the White House.

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