I was thinking this morning about how very different the political landscape is going to be under President Trump from what it would have been under Hillary Clinton. For starters, the current president’s executive actions on immigration are toast. No more DACA and DAPA. The Iran deal is looking shaky and Obamacare is probably in real danger of being repealed for the first time. And the Keystone XL pipeline, which the Obama’s administration killed a year ago, is probably going to get a 2nd look before 2017 is over.
And then it occured to me that something much bigger could happen. Last night’s election could be the beginning of the end of one of the most contentious pieces of law in U.S. history. I’m thinking of Roe v. Wade.
Because Republicans held the Senate and took the White House it’s a done deal that Trump is going to get to fill the seat of the late Justice Scalia with someone relatively young and conservative. Trump has promised to appoint pro-life Justices so that should be a given. That means we will likely be back to the same sort of stalemate we were at before Scalia died, i.e. there will probably be four votes to overturn Roe, which is obviously one short.
Trump is going to be in office for at least four years and for the first two years he’s going to have the Senate on his side to confirm his nominees. So maybe you’re thinking at this point that Justice Ginsburg, who is currently 83 years old, just needs to hold out for two years until Democrats can retake the Senate in the midterm elections of 2018. After all, the party out of the White House often picks up seats in off year elections. But that probably won’t be the case in 2018. As Politico pointed back out in September, 2018 is shaping up as a potential disaster for Democrats:
As difficult as the 2016 Senate map has been for Republicans, who had to defend numerous blue- and purple-state seats and could lose their majority, Democrats’ 2018 map looks practically unnavigable. The party starts with five ruby-red seats to defend: Indiana, Missouri, Montana, North Dakota and West Virginia. Then, Democrats have a slew of Senate seats up in traditional swing states, including Florida, Ohio, and Wisconsin. If he doesn’t become vice president, Tim Kaine will also face reelection in closely divided Virginia in 2018…
“[Democrats] have not figured out how to translate presidential success into midterm success. And even worse, this time we have a candidate who is winning by default,” said one Democratic strategist who has worked on Senate races. “It’s going to be a disaster.”
What this means is that, barring some real disaster, Republicans have a real to not only keep their Senate majority for two years but possibly even expand it for two more. And that’s why you have to ask yourself if the left-leaning Justices on the court can hold out for four more years. As mentioned, the Notorious RBG is 83 years old and will turn 84 a couple months after Trump is sworn in. Can she remain on the court until age 88 in the hope that someone defeats Trump in the 2020 election? Maybe. I certainly hope she has a long life and wish her well, but at some point she must be thinking about retirement.
And it’s not just Ginsburg who is probably getting toward retirement age. Anthony Kennedy, the swing vote who often decides which way those 5-4 cases go, is 80 years old. Justice Breyer is 78 years old. So there is a very good possibility that one of these Justices is going to retire at a time when Trump is president and the Senate is in Republican control. And once that person is replaced, we could realistically have 5 votes to overturn Roe v. Wade.
Of course the Justices don’t just get to decide to overturn a law that has been in place since 1973. But I have no doubt that there are already lawyers within the pro-life movement thinking about the kind of cases that could be brought, cases which could eventually make their way up to the Supreme Court and provide them a reason to reexamine the law.
There are many, many ways this could not happen of course. Republicans could lose the Senate in the midterms after some unforseen domestic or foreign policy disaster. Trump could appoint a judge who “grows” on the bench toward more progressive opinions. A currently serving conservative on the court could retire unexpectedly. The three Justices mentioned above could all hold out until 2021 after Trump loses a reelection battle.
And yet, looking at it now it really does appear more likely than it has been in a very long time that Roe v. Wade is vulnerable. Progressive law professor Erwin Chemrinsky wrote a piece for the LA Times today saying as much:
If even one justice among Ginsburg, Kennedy and Breyer leaves the bench while Trump is in power, there will be a majority for radical changes in constitutional law. Consider some key examples.
There almost certainly will be a majority to overrule Roe vs. Wade and allow states to prohibit abortions. I long have believed that Roberts, Thomas and Alito are definite votes to overrule Roe. Abortion would quickly become illegal in about half the states.
This really can happen after last night’s victory. The abortion question could finally be going back to the states.