The election of Donald Trump has already had a profound impact on the future of the U.S. Supreme Court. First and foremost, say goodbye to the nomination of Judge Merrick Garland, President Barack Obama’s languishing pick to replace the late Justice Antonin Scalia. Senate Republicans have been stonewalling the Garland nomination for the past several months, but with the election of Trump, Garland’s chances of being confirmed just dropped to absolute zero.
Get ready also to say goodbye to the unconditional liberal love affair with Justice Ruth Bader Ginsburg, aka the “Notorious RBG.” Ginsburg is currently 83 years old. Over the past few years, a handful of liberal pundits and activists have been urging Ginsburg to retire now in order to insure that President Obama got to name her replacement. But Ginsburg refused to budge from the bench. Now the possibility of a Democratic president naming her successor is off the table until at least 2020. If Ginsburg retires or dies during Trump’s first term, expect for her standing among liberals to plummet dramatically.
Finally, what is Trump himself going to do when it comes to Supreme Court vacancies? We know that Trump has released a list of 21 federal and state judges that he says he will consider nominating to SCOTUS. As I’ve previously argued, there are some impressive names on that list. But can Trump be trusted to stick to it?
Three months ago I reached out to a group of key figures in the libertarian and conservative legal movements and asked them whether the future of the Supreme Court was a good reason to support Trump in the 2016 election. The answers I got back were largely negative. “Trump is beyond the pale and there’s no guarantee Trump’s nominees will be any good anyway,” said Jonathan Adler, one of the architects behind the 2015 Obamacare legal challenge in King v. Burwell. “There is something deeply contradictory about the notion of electing a power-hungry strongman on the theory that he’ll appoint judges that respect and enforce constitutional limits on government,” said Alan Gura, the constitutional litigator who argued and won the landmark Second Amendment cases D.C. v. Heller and McDonald v. Chicago before the Supreme Court. These folks care deeply about the Constitution and about the courts and they simply don’t trust Trump.
One thing is certain: The battle over the future of the Supreme Court is about to heat up.