After a historically divisive election, the coming 90 days stand to determine the course of American civil rights for several generations, in large part because of President-elect Donald Trump's opportunity to appoint the next Supreme Court Justice.
A seat has been vacant on the court since Justice Antonin Scalia died in February this year, with President Obama's nominee, U.S. Court of Appeals chief judge Merrick Garland, being stonewalled by a Republican majority senate. With Trump set to take office on Jan. 20, Garland's nomination is likely never to be confirmed.
At stake with this judicial appointment are some of the fundamental rights and decisions that have defined American civil society reaching back several decades, including civil rights protections for people of color, women, and LGBTQ people, and could have profound effects on freedom of religion, freedom of the press, and abortion rights.
Another grim reality also sets in at the timing of Trump's election: That 83-year-old, two-time cancer survivor Ruth Bader-Ginsburg and 80-year-old Anthony Kennedy could either retire or die during Trump's term leaves open the possibility that Trump could appoint not one, but up to three justices, which would weigh the court 6–3 in favor of conservatives for several decades.
I spoke with Karen O'Connor—a political scientist and founder of the Women & Politics Institute at American University—at length this week about what's likely in store in the coming months as Trump makes his pick for the highest court in the land. She told me the changes we might see rest largely on yes, who he appoints, but also on the decisions made at the state level, where we can expect even more battles.
"He is shaking up all of the protections that are found in the Bill of Rights. And basically wants them open for re-examination," O'Connor told me. "We could have all the gains that have been made literally through the 1960s–from the Civil Rights Act of 1964 to the Voting Rights Act of 1965, the violence against women act is coming up for re-authorization. All of these things could be history if he is able to appoint a justice who feels the same way that he does on issues."
It could take quite some time for his appointment to go through…
While it's likely Trump's appointment will be someone who has a record of decisions that strongly reflect at least some of his agenda, it's not always the case that justices vote exactly according to their appointer's wishes, even when ideologically aligned.
The Trump campaign took the unusual step of releasing a 21-person list of potential nominees during his campaign after consulting with the conservative Heritage Foundation and Federalist Society.
Number one on the list is Keith Blackwell, the Georgia Attorney General who helped launch a challenge against the Affordable Care Act that ultimately failed in the Supreme Court last year. Blackwell is a member of the Federalist Society, which is a conservative, libertarian group that describes it mission as "reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law." That appears to be in line with Trump's professed support for states' rights.
Getting his pick confirmed is unlikely to be straightforward, though it will be far smoother sailing for him than it was for Obama, with the Republicans retaining control of the Senate. Democrats have already begun talking about the one method they could use to stall Trump's appointee: filibusters.
"The Republicans don't have the 60 senators that they would need to cut off debate. I think the Democratic senators are so angry that no courtesies were paid for President Obama’s nominee," said O'Connor.
The Supreme Court's 2016–17 term began on the first Tuesday of November, a week before Trump was elected. O'Connor says that by the time he's inaugurated, nominates a potential justice, and goes through the vetting process with probable filibusters from Democrats, it's unlikely that we'll have a justice confirmed before the end of this session.
It will be the first time in United States history that the court goes through an entire session without a full bench–which could mean more decisions being made in the lower courts than we've ever seen before.
…so expect more punting to lower courts from SCOTUS until then
Since Justice Scalia's death last year, the Supreme Court has been split between four liberal justices: Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader-Ginsburg; one moderate conservative, Anthony Kennedy; and three conservatives, Chief Justice John Roberts, Samuel Alito, and Clarence Thomas.
The court, seemingly aware of their current polarization, is sending back controversial cases to the lower courts more frequently, a pattern that could continue for as long as it takes for a new member of the court to be confirmed.
Perhaps the most high-profile example of this deference is Zubik v. Burwell, which the justices returned to the lower circuit courts in May this year. A group of religious non-profits challenged the Affordable Care Act's mandate that if they object to providing contraception to their employees, the government will compel their insurance provider to cover birth control. The non-profits argued that even that could be a violation of their religious freedoms.
To analysts, the court's decision to return the case to the lower courts seemed clearly tied to the justices being conscious of the fact that they are operating without a full bench.
"It seems pretty clear that this is a compromise born out of an eight-justice court, where the justices avoid saying anything on the merits and try to make the case go away," Steve Vladeck, a law professor at American University's Washington College of Law told CNN at the time. "It's not the first time they've punted since Scalia's death, but it may well be the most brazen one."
And pay attention to who Trump appoints to the state level
There are currently 92 open federal court positions across the country, including district courts and courts of appeals, that Trump could fill with a more conservative judiciary. "Roughly a quarter of all the positions on the lower courts have gone unfilled for almost two years. The Senate has refused to look at those judges," said O'Connor.
With the Supreme Court more likely to kick dicey cases that take on civil rights issues to the state level, it's likely major decisions about several causes that will matter to people of color, women, and LGBTQ people will depend on lower court rulings.
Trump said explicitly during his campaign that he intends to repeal Roe v. Wade, the landmark 1973 decision that established women's rights to abortion, which was re-affirmed in August this year in the court's ruling against restrictive abortion laws in Texas v. Whole Woman's Health. During the last presidential debate in October, Trump said he planned to appoint a Supreme Court Justice who would overturn federal protections for women's access to abortion affirmed in that case.
"A Trump nominee would go much further than that and go basically to what Justice Scalia wanted, which was overruling any constitutional right to an abortion and saying that that decision belongs to the state," said O'Connor. "And the states are quite divided on whether or not abortion should be safe and legal.
And a Trump nominee may vote to uphold any discriminatory policies the administration puts in place against Muslims in America, like Trump's suggestion that Muslims will be subjected to surveillance and his proposed ban on allowing Muslims to enter the country.
"Our country was founded on the separation of church and state and yet Mr. Trump has been very explicit, as you know, about saying we should target people with certain religious views," said O'Connor.
He's also said that he opposes same-sex marriage and would want his appointee to vote to overturn Obergefell v. Hodges, last year's Supreme Court decision affirming equal marriage rights for LGBTQ people. But in an interview on 60 Minutes Sunday, Trump said he thought marriage equality was a done deal, indicating that he didn't want to re-open the issue for discussion.
"It’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done," he said. "It’s done. It—you have—these cases have gone to the Supreme Court. They’ve been settled. And, I’m fine with that."
He has said that he believes states should decide whether or not to protect transgender people's rights. More generally, Trump said in May this year, "I think many things actually should be states' rights."
But it's worth noting that there will be other clearly homophobic influences within the Trump White House: Vice President-elect Mike Pence has publicly supported medically debunked, harmful gay "conversion therapy" and as Indiana governor created a law that effectively criminalized gay marriage.
Obama's last Hail Mary
There is one way Obama could push through Merrick Garland's confirmation without the Senate's approval before Trump takes office: the Senate is required by the Constitution to "advise and consent" on the president's nominee in a timely manner. Historically, it has taken the Senate on average around 30 days to confirm a nominee, O'Connor told me.
On the date that Trump will be inaugurated in January, it will have been 355 days since Obama announced Garland's nomination. It would be an unprecedented move, but not impossible.