Chance to shape top court falls to Trump

By Eric Schulzke

Deseret News

Donald Trump's shocking victory Tuesday averted the Republican doomsday scenario of a Clinton-shaped Supreme Court, a specter that had driven many reluctant Republicans to hold their noses and fall in line by voting for a candidate they didn't like.

Now, rather than a Hillary Clinton court pushing government and society to the left, Trump could well reshape the Supreme Court in dramatic fashion, expanding the fragile 5-4 conservative majority that had held for a generation until this year.

The GOP Senate leaders were vindicated Tuesday in their decision to sidetrack President Barack Obama's effort to replace Antonin Scalia, who died in February. And there is more to come. At least three more aging justices could allow Trump the chance to reshape the court: Ruth Bader Ginsburg is 83, Anthony Kennedy 80, and Stephen Breyer 78.

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.

No guarantees

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.

"Republicans have been trying mightily to find criteria that will allow them to pick justices who are predictable," notes Michael Gerhardt, a constitutional law professor at the University of North Carolina School of Law.

Having a Senate in GOP hands should help. Republican presidents have appointed 12 justices in the past 50 years. But only four were confirmed by a GOP Senate. And three of those four are now largely thought by conservatives to be ideologically successful choices: Antonin Scalia (1986), John Roberts (2005) and Samuel Alito (2006). (Some questions still surround Roberts, who startled conservatives by upholding the constitutionality of Obamacare in 2012 and its implementation in 2015.)

The exception in this group of GOP Senate confirmations is Sandra Day O'Connor (1981), Ronald Reagan's first nominee. She was chosen in part to fulfill Reagan's campaign pledge to nominate a woman as his first choice. This ruled out a number of prominent strict constructionist nominees at a time when the GOP controlled the Senate and could have confirmed a safer choice. O'Connor quickly became a swing vote alongside Anthony Kennedy, voting with the liberal faction on hot-button issues such as affirmative action and abortion.

By the time Reagan nominated Robert Bork in 1987 the Senate was in Democratic hands and that nomination in a brutal political battle. In the wake of the Bork defeat Reagan filled the vacancy with Anthony Kennedy. A blank slate and a moderate, Kennedy was calculated to squeeze through a hostile Senate.

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 Geoge H.W. Bush appointed another stealth nominee, David Souter. Souter immediately joined the court's liberal bloc and never looked back.

The lesson from the GOP Supreme Court follies is that nothing is certain. Trump's picks could misfire as did many GOP picks in previous years. But that is much less likely, Gerhardt says, if Republicans retain control of the Senate in the coming years.

Nuclear options

Even with the Senate in GOP hands, however, the filibuster looms large. Much was made in closing weeks of threats from some Republican senators, including Sen. John McCain (R-Ariz.), to block any Hillary Clinton nominees.

Retiring Minority Leader Sen. Harry Reid (D-Nev.) responded by threatening that Democrats would use the "nuclear option," i.e., change Senate rules to eliminate the filibuster for judicial nominees.

There seems to have been some miscommunication between the two, however. McCain specifically was threatening to use a Senate majority to block Clinton nominees. He was not threatening to block them using the filibuster, which controversially empowers the minority. Both McCain and Reid, it appears, expected to win Senate majorities on Tuesday.

No appointment to the Supreme Court has ever been filibustered. In 1968, the Senate did filibuster Lyndon Johnson's effort to elevate Abe Fortas from associate justice to chief justice, however, creating an ambiguous precedent.

Whether Senate Democrats would attempt a filibuster of a conservative nominee, and whether Senate Republicans would respond by invoking the nuclear option if they did, remains to be seen.

Immigration orders

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 Mexico pay for a wall along the border. He could do so by rewriting existing money-laundering statutes designed to fight terrorism, using them instead to track and block or tax wire transfers to Mexico, withholding a portion of what Mexican nationals send to relatives back home. He could then use those funds to pay for the wall.

The question has implications far beyond immigration law, especially with the White House and Congress so often at odds. And with 60 votes needed to move legislation in the Senate, Trump as president could find himself tempted to wield Obama's pen and phone.

Selective enforcement

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."

Ilya Somin, a constitutional law professor at the Antonin Scalia Law School at George Mason University in Virginia, defends the theory that presidents can decline to enforce a law.

"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 Mexico pay for a wall. Nor would it cover Obama's use of executive orders to create a Clean Power Plan.

"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.

Hot-button issues

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 District of Columbia and embraced a broad vision of the Second Amendment right to bear arms. It seemed unlikely that any Clinton nominee would not vote to overturn Heller, and equally unlikely that a Trump nominee will.

On abortion, a Clinton court would likely have shored up the permissive U.S. abortion law under Roe v. Wade. For several years, states from Texas to Wisconsin had been chipping away at that edifice. Earlier this year, the Supreme Court, on a 5-3 vote, struck down a restrictive Texas law that would have shut down most abortion clinics in Texas with health and safety regulations. Trump's replacement of Scalia will change nothing here, but if Kennedy retires, much could change.

Clinton was also outspoken about her aim to overturn the 2010 Citizens United decision, a fragile 5-4 split that held that a nonprofit corporation has full speech rights under the First Amendment to criticize political candidates. Opponents of Citizens United have criticized the decision for corrupting elections by opening a pipeline of unmarked money. That precedent now looks to be secure.

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 Supreme Court decision discussed below.

A Clinton-dominated court would almost certainly have overturned the 2015 Hobby Lobby decision, which was based on RFRA. There, a 5-4 court found that the Obama administration could not compel a family-owned company to offer contraceptives it viewed as abortion drugs in its health plan.

Flipped perspectives

Overturning Hobby Lobby would only have been the beginning. The religious free- exercise clause of the First Amendment now is in serious conflict with an expanding nondiscrimination clause on gay and transgender rights. If Trump solves the riddle of choosing reliable nominees, the resulting Supreme Court will likely move much more slowly on these issues, if at all.

RFRA was passed by a Democratic Congress in 1993 and signed by President Bill Clinton as a direct response to the 1990 Smith decision. In Smith, the court held that Native American religious ceremonies that used a hallucinogen could be outlawed as long as the law did not target the religion, but only bumped against it on the way to a defensible government objective.

The Smith decision blew an enormous hole in a longstanding consensus on religious liberty, said Eugene Volokh, a constitutional law professor at University of California, Los Angeles. Reaching back to the 1960s, Volokh said, a liberal consensus held that marginalized minority religious groups held special protections under the religious free-exercise clause.

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 William Brennan. Brennan ruled in favor of religious exemptions for a Seventh-day Adventist seeking unemployment insurance after being fired for refusing to work on Saturday. In Sherbert, the court imposed a high hurdle the government must clear to impinge on the free exercise of religion.

"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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Credit: By Eric Schulzke Deseret News