Now, rather than a
Rarely has a new president faced so much geriatric opportunity.
Clinton had looked likely to alter the court for many years to come, transforming American constitutional law on key issues such as abortion, gun control, the free exercise of religion, the clash between campaign finance law and freedom of speech, and separation of powers.
Now that opportunity falls to Trump, who twice this year released lists of potential nominees who were calculated to bring home wavering conservatives.
But if past is prologue, there are no guarantees Republican appointees will perform as expected.
If Trump does get three or four nominations who go on to vote as a bloc on key issues, he will have accomplished something that has eluded most Republican presidents.
The exception in this group of GOP
By the time Reagan nominated
Kennedy has been a swing vote from the beginning, frequently voting with conservatives, but also often tipping the court leftward. Kennedy has been the pivotal figure on multiple 5-4 gay rights decisions, beginning in 2003 and culminating with the gay marriage decision in 2015.
The Bork ruins were then still smoldering in 1990 when
The lesson from the
Even with the
Retiring Minority Leader Sen.
There seems to have been some miscommunication between the two, however. McCain specifically was threatening to use a
No appointment to the
Whoever ends up on the bench, the expansive use of executive power is likely to be a key flashpoint before the court, especially if Trump embraces and expands on Obama's controversial precedent.
On the campaign trail, Trump embraced Obama's use of executive power, vowing to use it to other ends. "I won't refuse it," Trump said on "Meet the Press." "I'm going to do a lot of things." Obama has "led the way, to be honest with you."
And the fight over executive authority could once again focus on immigration. Obama's most widely noted order would have protected up to 5 million immigrants from deportation had it not been blocked by the courts. Obama issued those orders in 2014, after six years of repeatedly declaring that he lacked the constitutional authority to do so.
Twenty-six states challenged Obama's order, arguing that he was creating immigration law out of whole cloth. In June of this year, the post- Scalia court split 4-4, leaving in place a lower court ruling that blocked the move.
In a bitter paradox for the left, Trump has suggested he could use executive orders to make
The question has implications far beyond immigration law, especially with the
One key question left unresolved by the 4-4 split on Obama's immigration order is when a presidential action stops being "selective enforcement" and becomes instead a legislative act, a rewriting of the law.
"It's a very basic question," said Gerhardt, "but a difficult one to answer."
The question has flummoxed legal scholars for decades, Gerhardt said. A president, like a local prosecutor, makes choices in enforcing the law under pressure of limited time and resources.
In the justice system, this is known as "prosecutorial discretion." For presidents and governors, the same principle is often referred to as "selective enforcement."
"There is vastly more federal law than any president can enforce," Somin said, drawing a sharp distinction between refusing to enforce laws and efforts to invent or expand them.
But Somin's theory of presidential discretion in declining to enforce the law against illegal immigrants would cover a Trump move to adapt a money-laundering statute to make
"The failure to prevent illegal activity by others is not same as taking illegal action yourself," Somin said.
If Trump does push beyond those constraints, expect a Trump-nominated court to wrangle with this key question of constitutional structure, with outcomes unclear.
Much more clear is that a Trump-shaped court will move very differently from the Clinton court, including on the recurring staples of gun control and abortion.
A Clinton court would almost certainly have overturned the controversial 2008 Heller decision. In that case, a 5-4 vote struck down restrictive gun laws in the
On abortion, a Clinton court would likely have shored up the permissive
Clinton was also outspoken about her aim to overturn the 2010
Other embattled areas include the fight over the free-exercise clause of the First Amendment, which protects religious beliefs and practices from government, though much of the action here will involve a federal statute, the Religious Freedom Restoration Act of 1993, rather than the free-exercise clause itself, which was weakened in a 1990
A Clinton-dominated court would almost certainly have overturned the 2015
RFRA was passed by a
The Smith decision blew an enormous hole in a longstanding consensus on religious liberty, said
Public views on religious free-exercise clauses have flipped since the 1960s, Volokh said. The key case in the 1960s was the Sherbert decision, written by liberal justice
"Many people are unaware that the religious exemption was Brennan's baby," Volokh said. At the time, he noted, the standard conservative position was to favor the state, since conservative Christians were then a comfortable majority. The liberal position at that time was to favor the marginalized religious groups.
Today, the roles have "largely flipped," Volokh said. "In the 1960s, the left saw religious exemptions as a valuable form of multiculturalism, a means for Americans to live together, as full participants in American political and legal life, without abandoning a key part of their culture, their religion."
"If nothing else," Volokh said, "this shows what a confusing issue multiculturalism is."
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