When Antonin Scalia died last March, the assumption was his death would result in a grand shift of the court. Either Barack Obama’s nominee, Merrick Garland, would be approved, or Hillary Clinton would move to put a more liberal justice on the court when she won the election.
Donald Trump’s surprising win Tuesday upends those plans. But, unlike most policy areas, Trump’s biggest impact on the court in his first term is likely to be one of continuity rather than huge change.
Because the open seat on the Supreme Court was previously held by archconservative Scalia, any replacement Trump nominates is unlikely to shift the balance of power on the Court.
Such a situation is a mixed-bag for liberals. It’s certainly disappointing for those who hoped to establish a new coalition on the Supreme Court that could safeguard and advance liberal perspectives on constitutional and legal readings, but certain rights and laws upheld by this court are unlikely to be overturned.
Trump’s election ensures the Roberts lean toward business on economic matters is likely to remain in place, and the controversial Citizen’s United decision will almost certainly stand if challenged again. Rulings on EPA regulations and a host of other issues are also disturbing for leftists that are experiencing the nauseating feeling that occurs when defeat is grasped from the jaws of victory.
But recent victories in the court by liberals are unlikely to be overturned. As long as none of the current justices leave the bench, marriage equality will remain the law of the land. The Court’s rulings on the Affordable Care Act also ensures that the law must be repealed by Congress, where Senate Democrats can stall efforts even as the minority party.
The advanced ages of liberal justices Ruther Bader Ginsburg and Stephen Breyer certainly presents a chance for Trump to upend the court, especially if he manages to get reelected in four years. And losing the ability to turn the Supreme Court into an instrument of affirmation for progressive and liberal policies certainly stings.
And if Anthony Kennedy, an older justice who has been the swing vote on issues, decides to resign, liberals face real trouble.
The wrong circumstances in a few years could lead to a disaster for liberals on the bench.
But, for now, liberals are not facing disaster. The problems they face are the ones they always faced.
It’s not much of a consolation, but in a sea of despair, one clings to whatever one can to stay afloat.