Now that the election has settled the question of who will appoint the next Supreme Court justice, we have spent a considerable amount of time analyzing who might get Donald Trump’s appointment. Perhaps a better way to look at that question will be to recall the context in which it gets made. Earlier this week, Justice Samuel Alito laid out the potential agenda for a court in which an originalist replaces the late Antonin Scalia — and reminded the Federalist Society of the bullet conservatives dodged in the election:
Justice Samuel Alito on Thursday laid out a possible agenda for the U.S. Supreme Court if it regains its conservative majority as expected after Donald Trump takes office, citing gun rights and religious freedom as among key issues it will tackle in the coming years.
Alito, one of the court’s two most conservative justices along with Clarence Thomas, pointed to freedom of speech and a disruption of the U.S. Constitution’s separation of powers caused by federal agencies expanding their authority at the expense of the U.S. Congress as other “constitutional fault lines” that could come before the court.
Alito offered a sense of what a right-leaning court could accomplish on a number of issues, including free-speech challenges on college campuses, religious freedom, and protecting earlier victories such as Citizens United. Alito got specific on the danger to Heller and McDonald, and suggested that the next right-leaning court could tackle executive-agency overreach:
In reference to gun rights, Alito mentioned Justice Stephen Breyer’s dissent in the 2008 case District of Columbia v. Heller, in which the court found an individual right to bear arms for self defense. Breyer’s dissent, in which he argued that the Constitution’s Second Amendment protects militia-related and not self-defense-related gun rights and it does not absolutely bar government action on guns, gave a “roadmap” to those who would seek to undermine the ruling, Alito said.
Alito also assailed federal agencies including the U.S. Environmental Protection Agency for seeking to expand their power beyond what was allowed under laws passed by Congress.
Certainly those earlier gains were put at risk with the passing of Scalia. However, it’s not terribly clear that simply replacing Scalia with another originalist will lead to a conservative renaissance on the Supreme Court. It’s a return to the status quo ante that produced the blessing of ObamaCare — twice. Even the gains made in some of these cases turned out to be more incremental than breakthrough, although they were all happily received. It could have been worse.
The key isn’t the upcoming appointment, at least now that the election has been decided. It’s the next appointment after that, especially if one of the liberal seats on the bench open up for Trump to fill. Anthony Kennedy and to some extent John Roberts will still determine the swing on the court. A second appointment, assuming that scenario, will be the one that pushes the court to the right significantly enough to make originalism more dominant in the outcomes.
For that reason, it seems more likely that Democrats will keep their powder dry on the upcoming nomination to replace Scalia. They need to save their remaining political capital to really go to the mattresses if Trump gets to replace Ruth Bader Ginsburg or Stephen Breyer (and of course we all hope through retirement in health). They can’t afford to burn the SCOTUS filibuster on this first choice, but need to play for time and hope Trump’s political capital gets expended on other issues. If they’re smart and thinking long-term, they’ll organize a nay vote to make their point on the upcoming nominee and bide their time for the real nightmare scenario. Otherwise, flush with the success of the election and Democrats’ tone-deaf obstructionism, Republicans will bury the SCOTUS filibuster, blame it on Harry Reid, and give Trump carte blanche for at least four years on Supreme Court nominations.