It's a headline that less than two years ago would not have looked out of place at The Onion: Donald Trump has been elected to the office of presidency as the nation's Commander-in-Chief. This is our new reality. For the next four years.
On an existential level, this raises some uncomfortable truths about this country. One of them is about women. Voting for Donald Trump was a forceful rejection of women. It was a rejection of the history-making would-be first female president. It was a rejection of a woman's right to control who touches her and grabs her. And it was a rejection of a woman's right to choose. (Even worse, that rejection was shared by 53% of white women, who voted for Trump. But just because they were women does not make that rejection less explicit.)
Whatever Trump's positions may have been prior to running for president, however confusing and often clearly uninformed were his answers in interviews (women who get abortions should be punished, wait let me backtrack) and debates (send Roe back to the states! No ripping babies from wombs!), the reality is that he ran as a Republican, alongside the pro-gun, anti-gay, anti-choice Republican platform (which dovetails with what his VP, Mike Pence, has staked his career on).
The GOP outplayed President Obama over the open Supreme Court seat left by Justice Antonin Scalia, who died last February. His carefully chosen, moderate, line-straddling choice, Justice Merrick Garland, never had a chance against an obstructionist GOP Congress (which had also vowed to block Hillary Clinton from filling the seat). The seat, which became vacant with almost a full year left of Obama's term, is now open for Trump to fill.
And let's not forget that three sitting justices are over 78—liberals Ruth Bader Ginsburg and Stephen Breyer, and swing-vote Anthony Kennedy—so a Trump replacement for any of them would shift the court decisively to the right. Over a four-year term, there is a reasonable chance that Trump may have an additional replacement, or more, to name. And remember, these are lifetime appointments. Kennedy, Clarence Thomas, Ginsburg, and Breyer have all been on the court for more than 20 years. Did you feel like vomiting from the election results all over again? Same.
The court is ripe for stacking with super-conservative, mostly white dudes—a handy list of which Trump provided during the campaign to reassure Republicans that yep, he was conservative enough. Vomit time again: The Huffington Post's Ben Walsh also reported that revenge-loving 19th-amendment-hating Silicon Valley billionaire investor Peter Thiel told friends that Trump professed to want him for the Court. Thiel would be the first openly gay member of the court and is also reportedly part of the Trump transition team, so perhaps he will have a White House role. But if Trump really does want Thiel for the court, then the 49-year-old would have years ahead of him on the court, especially if his immortality research goes well.
Thiel would be the first openly gay member of the court, and he supports marriage equality, which Trump has said he'd want to send back to the states. So who knows. (And Thiel is reportedly part of the Trump transition team, so perhaps he will have a White House role.) But if Trump really does want Thiel for the court, then the 49-year-old would have years ahead of him on the court, especially if his immortality research goes well.
Assume Trump will nominate a justice in the very short term once in office, if not on his first day. Which will return Justice Anthony Kennedy to his comfortable place as a reliable swing voter (who swings unreliably) on an otherwise fairly consistent Court. This new version of SCOTUS will determine how cases around women's reproductive rights, voting rights, civil rights, LGBT rights, gun rights, religious freedom, and a whole host of other important issues are decided, should they come before it.
Here is a snapshot of how some of the hottest-button issues of our time may play out:
Reproductive Choice
Reproductive choice should actually be an easy sell to Republicans: it's about personal liberty, economic self-determination, reducing poverty (and the need for government assistance), and allowing a qualified, certified doctor the latitude to make an informed professional decision in conjunction with her/his patient, which means less government regulation. Alas, the GOP does not see it that way—and as a result, overturning Roe v. Wade has become party gospel. I am sorry to say that under a Trump presidency, this seems likely (though not immediately). A new Trump justice would restore the former balance of the court with Kennedy as swing; more would undoubtedly be a rout.
It's no secret that states have been throwing up a whole whack of laws meant to restrict abortion access (that is to say, restrict abortions), and in the Court's June session one of them, Whole Woman's Health v. Hellerstedt, got an epic 5-3 smackdown, overturning a Texas law that restricted abortion providers to specific facilities "for the health of the woman," which actually had no health benefits but lots of disadvantages. That was awesome—and toppled similar laws in other states - but there's no shortage of other, separately restrictive abortion laws: according to the Guttmacher institute, the "334 abortion restrictions enacted by states from 2011 to July 2016 account for 30% of all abortion restrictions since Roe v. Wade," and conservative groups are gunning for them to get to the Supreme Court eventually.
When that happens, there are a few factors that will determine if Roe v. Wade will be sent, in the words of new VP-elect Mike Pence, "to the ash heap of history," returning abortion laws to the states—which would mean outright abortion bans in 21 states, according to the Center for Reproductive Rights. Harvard constitutional law professor Noah Feldman writes reassuringly that Roe has proven "stunningly durable" for its 43 years, and that Chief Justice John Roberts frowns on overturning settled judicial precedent. He also notes that Kennedy's swing vote on this issue is likely to stay swung. So there's that.
But 2020 feels very far away, and Trump is starting out with one seat. Obama got two, both in his first term (and would have gotten Scalia). Bush got two, both in his second term. Bush Sr. got one. Clinton got two. Reagan got four. So the odds are with Trump.
Right now Trump is filling a conservative seat. But if he gets to fill a liberal one, then Roe's fate will truly hang in the balance.
Gun Control
Though Trump's campaign platform had asection on the Constitution—and, it should be said, vowed to uphold it and "Constitutional liberties"—the liberty he was and presumably is really gung-ho on is the right to keep and bear arms.
Trump was endorsed by the NRA, and his campaign platform was very pro-gun—all kinds of guns ("The government has no business dictating what types of firearms good, honest people are allowed to own"). He also supported expanding concealed carry to all states. He supports the Second Amendment–expanding decision of District of Columbia v.Heller, and his court no doubt would, too. (The four conservative members of the court supported that one and Kennedy swung their way.)
Meanwhile, in California, gun control was aggressively expanded, so we may see tension going forward. California's Proposition 63 bans large-capacity magazines, calls for background checks for both ammunition sales and ammunition dealers, and streamlines the confiscation of guns from people who have lost the right to own them. Given Trump's stated priority of nominating judges in favor of an expansive Second Amendment, it seems unlikely such measures would survive a Trumpified court.
Citizens United Is Safe
Hillary Clinton, had she won, was keen to see Citizens United (aka bottomless corporate campaign contributions) overturned, but under Trump that seems unlikely (especially since Kennedy swung that one, too).
Try not to think too hard about 2020.
Marriage Equality
Last night on 60 Minutes, as mentioned above, Trump called marriage equality "settled law" and said he is "fine with that." Great! But this is actually a flip-flop from earlier this year during the campaign when Trump said he thought it should go back to the states and would "strongly consider" appointing judges to overturn it.
So. Believe Trump out of both sides of his mouth. And note that his shortlist of potential conservative judges are, according to the Advocate, "largely unsympathetic" to LGBT rights. So if he appoints anti-LGBT conservative justices to a Trumpified court, "settled law" could easily change.
Voting Rights
One of the saddest SCOTUS decisions in recent memory (and probably with sad ramifications for this election), Shelby County v. Holder (another 5-4, another Kennedy swing), decimated the Voting Rights Act, lifting the requirement that states with a history of being super-sketchy about voting discrimination (e.g., North Carolina) seek Justice Department approval for any new voting law. Though a slew of subsequently enacted laws were struck down by lower courts, one of them―a North Carolina law that the Fourth Circuit Appeals Court said had been enacted to "target African Americans with almost surgical precision"―may be appealed to the Supreme Court. (NC Governor Pat McCrory said he would when the decision came down this summer, but he's currently in a too-close-to-call race for his seat, and it looks like he'll lose it, so at least there's that. But this really shows just how much these cases turn on having GOP legislators to send them up the chain).
In the post-Shelby era, it will be tough to see how a Trumpified court will do much for voting rights. But the decisive and fairly unanimous response by the lower courts to voter suppression laws this year was encouraging. As the data from the election shakes out, we'll soon know just how pressing the ACLU's mandate is for next time.
Trans Rights
G.G. v. Gloucester County School Board will determine the fate of that North Carolina (again!) trans-use bathroom law. That said, the plaintiff, Gavin Grimm, won the case at the 4th Circuit, and the Supreme Court granted an emergency stay to keep him out of the boy's bathroom in August, before it was announced on October 28th that it would be reviewed by the Supreme Court. Had the court passed, Gavin would be able to use the bathroom. But it didn't, and this time Anthony Kennedy swung with the conservatives. (Kennedy swung in favor of, and wrote the impassioned decision in, marriage equality case of Obergefell v. Hodges—obviously he's the unpredictable swing voter for a reason). This case is not on the calendar yet, so it may eke in under the Trumpian wire. But Trump is going to fill that seat fast. So who knows.
So Where Does This Leave Us?
The good news is that a Trump Supreme Court would still be bound by the rule of law (which both Hillary Clinton and Barack Obama mentioned in their post-election speeches, as though to remind us). Noah Feldman reminds us that "the Constitution is built to protect the losers," but that's mostly from a total abrogation of our rights (like, say, throwing Hillary Clinton in jail—unlikely, but the thought of Rudy Giuliani as Attorney General is terrifying).
This is all speculation, of course. Lawyers can blow cases, and justices can surprise us. But there's a reason that the Republicans dug in over the Supreme Court seat. They knew it mattered. Back in February, it seemed inconceivable that they'd win on that, but they did. Just like until Tuesday night, it seemed inconceivable that Donald Trump would win. But he did.
