By Tejinder Singh*
It is difficult to overstate the effect this election is likely to have on the composition of the Supreme Court. Prior to election day, the Democrats were favorites to win the White House and the Senate. Had they done so, the likely result would have been a five-Justice mostly-liberal majority that would have lasted for decades. The current vacancy likely (but not necessarily) would have been filled by Judge Garland during the lame-duck period; and Justices Ginsburg and Breyer would most likely have retired in the next two years, to be replaced by younger liberal Justices. So there would have been four solid, relatively young liberals on the Court, plus Justice Garland in the middle, who I think would have been mostly liberal, except perhaps in some subset of criminal cases. It is also possible (but unlikely) that Justice Thomas and/or Justice Kennedy would have left the Court, creating an opportunity to move it even further to the left.
The picture now looks very different. The current vacancy will be filled by somebody chosen by President Trump and a Republican senate—which will almost certainly amend the senate rules to eliminate the filibuster. There also is reason to think that one or more conservative Justices (Thomas and/or Kennedy) will retire in the next four years to be replaced by much younger Justices who are just as conservative, if not more so. So the Court will either stay as it was before Justice Scalia passed away, or move even further to the right (if Justice Kennedy retires and is replaced by somebody more conservative, it is likely that Chief Justice Roberts would become the new “swing vote”). If Justice Ginsburg or Justice Breyer leaves the bench in the next four years (of course, neither would do so voluntarily), their successors are likely to be very conservative, and we will be left with a durable conservative majority with no “swing vote” to speak of.
Even if Justices Ginsburg and Breyer stay on the bench for four more years, it is highly unlikely that either could stay for eight more years. And even if the Democrats retake the White House in 2020, it is doubtful that they also will be able to retake the Senate by then (the map for 2018 looks horrible for Democrats; the 2020 map looks better, but not great). The upshot is that it is now highly likely that Justice Ginsburg and Justice Breyer will either be replaced by a Republican president with a Republican senate, or by a Democrat president facing a Republican senate. When that happens, the Court will inevitably move to the right.
The worst-case scenario for liberals is that before the next 8 years are done, we could have a Supreme Court where Justices Kagan and Sotomayor are the only members that anybody would reasonably consider liberal—and everybody else will be solidly conservative. And that situation may well endure for decades.
There is one caveat to this prediction, which is that Trump has not yet released his full list of potential nominees. Some are musing that President Trump may not turn out to be as conservative as Candidate Trump, and so his judicial appointments may not be quite as conservative either. I think it is unlikely for a variety of reasons—but if this election has taught me anything, it is that I am terrible at predicting the future. Once President Trump names a Justice to fill the open vacancy, we will all have a much clearer picture of who else he plans to nominate.
It is breathtaking that the razor-thin margin of Republican electoral victory is likely to have such a substantial and permanent effect on the law in this country. A Democrat victory would have been arguably transformative as well (depending on how Justice Garland would have voted). But the gulf between what could have been and what we are now likely to see only highlights the degree to which the Court is an extension of partisan politics—without the saving grace of term limits.
*Mr. Singh is an appellate and Supreme Court litigator and a partner at Goldstein & Russell, P.C. He is also a regular contributor to SCOTUSblog and an instructer in the Harvard Supreme Court Litigation Clinic.