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    How President Trump Could Reshape the Supreme Court—and the Country

    The most lasting legacy of the Trump presidency could be the judges he appoints to the highest court. Here’s what that could look like.

    By JEFFREY ROSEN November 13, 2016

    At least half of the country was surprised by Donald Trump’s victory on election night, and Washington is now scrambling to guess how he will lead in the White House and abroad. But the most lasting effect of the Trump presidency could be his power to shape the Supreme Court, where he has one vacancy to fill now and the possibility of more in the years ahead.

    Just how could President Trump reshape the highest court—and the country?


    We’ve already heard what kinds of justices Trump plans to appoint. During the third presidential debate, he described the 21 candidates he had identified on two separate lists as “pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

    Trump thanked two conservative groups—the Heritage Foundation and the Federalist Society—when he released his short list, and all of the 21 prospective appointees are constitutional conservatives who might be considered by any Republican president.


    In the short term, all of the judges on Trump’s list would restore the balance on the John Roberts court to the 5-4 conservative-leaning split that prevailed before Justice Antonin Scalia’s death in February, with Justice Anthony Kennedy as the swing vote in the center. Trump could further solidify the Roberts court’s conservative majority by filling Scalia’s seat with a much younger justice. For example, Clarence Thomas was in his 40s when he was appointed to the Supreme Court by President George H.W. Bush and has now served for 25 years.

    But Trump’s appointee might be more willing to enforce limits on congressional and presidential power than Scalia himself. Many of the younger conservatives on Trump’s list have embraced a posture of judicial engagement rather than judicial deference to the political branches, and many are also more pro-law enforcement on issues involving government searches and seizures than Scalia was.


    Te restored conservative majority might also restrict the authority of federal agencies. For example, in a little-noticed anti-regulatory dissent in 2013, Chief Justice Roberts lamented the administrative state’s “thousands of pages of regulations” and criticized “hundreds of federal agencies poking into every nook and cranny of daily life.” (Scalia wrote the majority opinion, professing the need for judicial restraint.) A Trump justice might heed the chief justice’s anti-regulatory call. That means he or she might also vote to repeal or revise Obama-era regulations on climate change, health care, consumer protection and Wall Street—or, at the very least, greenlight the anti-regulatory efforts of President Trump and the Republican Congress, whether through executive actions or new legislation repealing key parts of the Affordable Care Act and Dodd-Frank. Finally, any new conservative justice might even take up Thomas’ call to re-examine the constitutionality of the regulatory state.

    it’s possible, of course, that President Trump will have more than one Supreme Court appointment. If liberal Justices Ruth Bader Ginsburg (age 83) or Stephen Breyer (age 78) were to retire during the next four years, we would see a 6-3 conservative majority for the first time since the pre-New Deal era, which ended in 1937. Such a court could have far more dramatic effects than a 5-4 court on constitutional law across a range of areas, for years or even decades to come.

    A 6-3 conservative court could cut back on abortion rights by upholding state regulations on abortion clinics and providers, and eventually even strike down Roe v. Wade. (In the third presidential debate, Trump said that because he would appoint pro-life justices, overturning Roe “will happen, automatically in my opinion.”) The Trump Court also could strike down affirmative action programs on the principle that the Constitution is colorblind. It could uphold voter ID laws and continue to deregulate the campaign finance system, striking down disclosure requirements and limits on campaign contributions that the Roberts court has upheld.


    What are the odds of President Trump having "more than one Supreme Court appointment"?

    Odds of dying before 2021:
    1. Ruth Ginsburg 34.24%
    2. Anthony Kennedy 33.34%
    3. Stephen Breyer 27.13%

    Average of the three: 31.57%

    Three shots at one-out-of-three odds.
    Watts Up With That? | The world's most viewed site on global warming and climate change.

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