With the US presidential election less than 60 days away, there are several things to note about the impact of a possible Trump reelection, especially with regards to the Supreme Court and the US Constitution. Things like Constitutional healthcare coverage, LGBTQ rights and abortion rights may be subject to change or repelling, should Trump come out on top on November 3rd.
What is the Supreme Court?
The Supreme Court of the United States (SCOTUS) is the highest court of law in the US. Its purpose is to ensure that the people have “Equality Before the Law”, as is written above the entrance of the building in Washington DC. Being the protector and interpreter of the Constitution, the most important document in US history, the Court is also intended to be impartial from other institutions and political entities. This means that each citizen or case before the Court is treated independently and unbiased, regardless of the religious belief or part affiliation of the subject.
The SCOTUS consists of one Chief Justice and eight Associate Justices, a number set by the US Congress. This means that a simple majority of 5 to 4 is needed to pass or reject a motion. These justices are nominated by the President and later nominated with the consent of the Senate. Most importantly to this piece, the justices get lifetime tenure, and can thus serve until deceased.
The current SCOTUS is comprised of one G. H. W. Bush (Rep.) nominee, two Clinton (Dem.) nominees, two G. W. Bush (Rep.) nominees including Chief Justice John Roberts, two Obama (Dem.) nominees and two Trump (Rep.) nominees. Hence justices appointed by Republican presidents outnumber the Democratic ones by the simple majority: 5 to 4. This, however, does not mean ‘complete Court control’ by the Republicans, as justices cross party lines on several occasions. Indeed, Chief Justice Roberts has a reputation for being less partisan than the other Republican appointees.
The SCOTUS of the near future
The situation for the Democrats looks increasingly complicated. The two Clinton nominees, Stephen Breyer and Ruth Bader Ginsburg, are 82 and 87 years old respectively, with Ginsburg having had many health-related problems, including a battle with cancer which resulted in chemotherapy last August.
Thus, should Trump go on to win the election on November 3rd and retain the presidency for another four years, it is probable that he will get to have another Associate Justice appointed for the SCOTUS. Worst case scenario for the Democrats, he could have two appointed and significantly skew the Court towards Republican friendly Justices with a majority of 7 to 2. Given the granting of lifetime tenure, such majority could last for decades to come.
In a scenario where Rep. appointed justices have a 7-2 majority, many of the Constitutional rights fought for in recent years may be at risk.
- Healthcare. In 2012, Chief Justice Roberts broke with the other Republican appointees to preserve the Affordable Care act. In 2015, Roberts and then Justice Kennedy did the same to protect Obamacare. This protection of public healthcare for about 20 million Americans is unlikely to be able to proceed with Kennedy gone and Trump possibly in office until 2024. (NFIB v. Sebelius 2012 and King v. Burwell 2015).
- LGBTQ marriage rights. In 2015, Kennedy again crossed party lines and was in the 5-4 majority to grant same-sex marriages the same rights as opposite-sex ones. (Obergefell v. Hodges 2015).
- Abortion rights. Trump has publicly stated that abortion rights should be determined by the state, and has appointed justices with the intention of repealing Roe v. Wade, a 1973 case that protects women’s rights to have an abortion. This Constitutional right was further strengthened under Obama when in June 2016 many state restrictions on abortions were repelled.
With a 7-2 majority, these and many more Constitutional rights could be subject to change or removal, including gun laws and the role of the Environmental Protection Agency. And this is something Trump has been building towards. In the three and a half years he has served as POTUS, he has spent a significant amount of time filling courts of appeal with select judges, amounting to over 50 compared to the 55 Obama appointed in eight years. It is also worth noting that Trump replaced the above mentioned Rep. appointed Justice Kennedy with a more traditional conservative in Justice Brett Kavanaugh.
Are there alternatives to the current structure?
Many politicians and public figures have suggested term limits to the SCOTUS in order to provide more flexibility to the tribunal in the US. One of these people is former Dem. Presidential Candidate Andrew Yang, who suggests 18-year term limits to Supreme Court Justices:
“The stats largely back up that we do have a partisan problem on the Supreme Court. The number of 5-4 decisions, reflecting the line between Republican-appointed and Democrat-appointed Justices, has increased in recent years. When a new seat opens up, lifetime appointments incentivize finding the youngest, most partisan jurist who can gain confirmation in order to ensure a particular bent on the Court for as long as possible. Current Justices can expect to serve for 40 or more years. For historical context, the average Justice has served for 15 years, though Justices appointed since 1970 have served for an average of 26 years.
This isn’t the way it was envisioned at the founding of our country, when life expectancy was shorter and Justices would often retire or resign well ahead of their deaths. We need to return some level of sanity and balance to the Supreme Court.”
New York Magazine, 2020
Supreme Court of the United States, 2019