Donald Trump winning the presidency — despite being the second choice of the American people — will have far-reaching effects, but the most potentially devastating outcome is the opportunity he may have to transform the Supreme Court.
We don’t know how many justices Trump will have the opportunity to fill in his term. But we do know he will get at least one: the seat vacated by the death of Antonin Scalia and held for Trump by the Republican Senate for nearly a year. In addition, Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy is 80 and Justice Stephen Breyer is 78. At best, Trump winning represents a substantial opportunity cost for those who hoped to finally get a Supreme Court controlled by Democrat-appointed justices. At worst, Trump could entrench Republican dominance of the court for several more decades.
A court stacked with right-wing justices would severely constrain future Democrat-controlled administrations and Congresses. But while the courts are generally considered to be a way to check the president and Congress, the Supreme Court is now unlikely to constrain Trump.
Republicans have maintained a stranglehold on the Court while representing an increasingly narrow coalition.
It would be one thing if Republicans had persuaded the American public about the merits of their neoconfederate constitutional vision. But they haven’t. The Democrats have now won the popular vote in six of the last seven presidential elections. Going back to 1964, they have won the popular vote eight times, Republicans six. But Republicans have controlled the Supreme Court since early in the Nixon administration, and will be able to continue this into at least a sixth decade.
Thanks to the Electoral College — that anachronistic and indefensible mechanism the Constitution uses to select the president — putting the popular vote loser in the White House twice in 16 years, along with institutional failures such as the Supreme Court’s lawless resolution of the election in 2000, the FBI putting a thumb on the scale in the last days of the 2016 election and widespread vote suppression in both 2000 and 2016, Republicans have maintained a stranglehold on the Supreme Court while representing an increasingly narrow coalition.
The founders did expect the judiciary to be independent to some degree from the political branches, guaranteeing federal judges life tenure and their full salary. But that doesn't mean they expected the courts to impose a constitutional vision on the country that had been repeatedly rejected at the ballot box.
Let’s start with a landmark event that got far too little attention during the 2016 campaign: Mitch McConnell’s Supreme Court blockade. The Senate’s unprecedented refusal to even consider a replacement for Scalia with a year left in the Obama administration handed Trump an immediate opportunity to fill a Supreme Court seat.
Admittedly, the immediate effect of this will be merely to return the Supreme Court to roughly where it was before Scalia’s death (although there’s a good chance that Trump’s nominee will not share Scalia’s salutary libertarian streak in Fourth Amendment cases). Anthony Kennedy will remain the median vote. But this is still highly significant. The Republican war on labor unions and voting rights helped Trump win despite having less support than Hillary Clinton. Once Trump appoints a replacement for Scalia, the playing field will continue to be tilted against the Democrats.
One factor behind Trump’s win in states like North Carolina and Wisconsin was ruthless vote suppression measures, including voter ID laws, targeted at minority voters. The Supreme Court gutted the Voting Rights Act in its infamous 2013 decision Shelby County v. Holder. A Democratic-majority Supreme Court would have likely ruled that many of the measures upheld in that decision were, in fact, unconstitutional. But a Republican Court led by longtime voter suppression advocate Chief Justice John Roberts will allow these attacks on democracy to proceed. Expect to see the enactment of more measures that have both the intention and the effect of reducing voting by racial minorities, such as voter ID restrictions, reductions in early voting and reductions of polling places in dense urban areas. Then expect the Supreme Court to leave most if not all of them standing.
Another factor behind Trump’s win has received far too little attention, is the weakening of labor power by Republican legislatures in states like Wisconsin and Michigan. Because of McConnell’s blockade, the Supreme Court will almost certainly rule within the next two years that the First Amendment requires unions to allow members to benefit from the effects of union activity without contributing dues. Under current law, people in a workplace represented by a union have to pay dues to cover the costs of collective bargaining and other union activities. The Supreme Court is likely to hold that workers represented by unions can opt out entirely. This would be a major blow to progressive interests, because unions provide critical support for the Democratic Party, and will also reduce union density and further increase America’s already unconscionable economic inequality. This will be a devastating blow to organized labor, which is already fighting an uphill battle against the corporate dominance of elections ushered in by Citizens United.
All this is the optimistic scenario. If Trump gets only one Supreme Court nomination, the damage done can be contained and in some cases reversed if the Democrats win back the White House 2020. But what happens if one or more of Ginsburg, Breyer or Kennedy leave the bench?
The result of this would be a Court lurching radically to the right. In addition to the consequences already discussed, Roe v. Wade could be severely curtailed or outright overruled, the power of Congress and the executive branch to regulate the economy could be curtailed, the rights of employees and the Fourth Amendment could be read more narrowly, states could have more leeway to arbitrarily choose people for execution using potentially barbaric methods, among many other things.
If Trump gets two nominees these changes would be entrenched for a while, and if he gets three, the results would be even more catastrophic. A Democratic president elected in 2020 who wants to regulate carbon emissions more aggressively would probably be out of luck. The next Democratic Congress that can get the votes to expand access to health care after whatever damage Republicans can afflict on the health care system is likely to have whatever they pass struck down. The Republican constitutional vision — which is much more John Calhoun than Abraham Lincoln — will continue to dominate even if Democrats become more politically successful.