High court’s political balance hinges on presidential election
That left Richard Nixon to nominate a conservative instead, the start of a quarter-century of Republican appointments that moved the court to the right.
Now, with the GOP-led Senate’s refusal to consider President Barack Obama’s candidate, Merrick Garland, to fill the vacancy created by the death of Antonin Scalia, the high court faces — if Hillary Clinton wins in November — the prospect of a similarly historic shift, albeit in the opposite direction.
If GOP nominee Donald Trump wins, conservatives are likely to restore their 5-4 majority, based on the names of prospective nominees his campaign released.
But a Clinton victory would likely give the court a majority of Democratic appointees for the first time since 1969. The Senate could decide to approve Garland in the lame-duck session at the end of the year, or leave the choice to Clinton. Either way, it would represent the most liberal high court since the early 1970s. If that happens, what could change? For starters, liberals could score some short-term victories early next year on several hot-button issues involving Obama’s executive actions and regulations — on immigration, climate change, contraceptives and rights for transgender stu- dents.
This past spring, the justices put off several decisions, given the current 4-4 split among Republican and Democratic appointees. For example, they did not decide whether employers at religious schools and colleges can be required to provide free contraceptives for their female employees under Obama’s health care law. That issue remains unresolved, but a fifth Democratic appointee could form a majority to uphold the so-called contraceptive mandate.
In June, the court split, 4-4, on Obama’s plan to defer deportation and offer work permits to more than 4 million immigrants living in the U.S. illegally.
The tie vote kept in place a Texas judge’s order that has halted Obama’s policy. But the case is still pending, and with a fifth Democratic appointee, the court would probably clear the way for the policy to be put into effect.
The growing dispute over transgender students using bathrooms that match their gender identity could be taken up early next year. A Virginia school district has filed an appeal challenging an Education Department decree.
A final major decision could come in the area of voting rights. In recent years, Republican-led states have adopted new election laws that limit early voting and require voters to display specific state- issued photo IDs at the polls. These measures have been challenged by civil rights lawyers and the Justice Department on the grounds they are designed to restrict voting by African-Americans and Latinos.
“There is no doubt that a liberal court would be more sensitive to claims of voter suppression like we’ve seen in North Carolina and Texas and more vigilant against racial gerrymandering,” said Steven Shapiro, the ACLU’s national legal director.
Many conservatives say that the prospect of a liberal Democrat filling Scalia’s seat is driving support for Trump.
“It could mean rolling back ... the 2nd Amendment and cutting back on religious liberty,” said Elizabeth Slattery, a legal analyst at the Heritage Foundation, a conservative think tank. “Citizens United is also on the hit list for the left,” she said, referring to the 2010 decision that knocked down limits on independent campaign spending by corporations and unions.
“My guess is the shift would be fairly slow and incremental,” said University of Chicago law professor Geoffrey Stone. “The so-called liberals on the court are by nature and experience fairly cautious and moderate.”
Judge Merrick B. Garland, right, and President Barack Obama depart after Garland was nominated to the Supreme Court. His nomination has been in limbo, pending the presidential election.