When Trump takes office, immediately he will have one seat on the Supreme Court to fill, that of the late Justice Antonin Scalia. That first nomination, however excellent it may be, will simply reinstate a divided court that turns on Justice Anthony Kennedy’s swing vote (last term, Kennedy voted with Democratic nominees Stephen Breyer and Elena Kagan 90 percent of the time).
By the end of his first term, four justices will be over 70 years old and three will be over 80. One of those will be Ginsburg, another will be Kennedy—two jurists whom conservatives most want to bid adieu. A Trump replacement of these two seats would begin to alter the court.
We can’t know the cases a Trump Court will hear, but consider the stinging pro-life defeats from just the past year.
In Whole Woman’s Health v. Hellerstedt, the court ruled 5-3 that a Texas law improving abortion safety standards at abortion clinics, and requiring abortion doctors to have hospital admitting privileges, was an unconstitutional violation of a woman’s right to choose abortion. Would a Trump court allow the citizens of a state to establish such safety standards? Probably.
The court also refused to review Stormans v. Wiesman, leaving in place a lower court ruling that gives Washington state the power to force pharmacists to peddle potentially abortion-inducing drugs, like Plan B, against their sincere conscience objections.
In dissent, Justices Samuel Alito, John Roberts, and Clarence Thomas called the case “ominous.” We can expect a Trump court to show far greater respect for conscientious objection to participating in abortions.
And let’s not forget the Little Sisters of the Poor, who appealed to the Supreme Court for relief from Obamacare’s Department of Health and Human Services mandate to provide contraception and abortion-inducing drugs in their employee health insurance plans. A majority of the court punted Zubik v. Burwell until after the election (probably due to the absence of Scalia).
Trump, not being a Washington insider, or even a politician, didn’t play his part. He probably didn’t even know there was a script. He blithely said he would appoint pro-life justices, and even produced a list of them in advance.
The decision to release a list of potential appointees for the Supreme Court was utterly unprecedented—and a stroke of genius, judging from the exit polls. One in five voters said the Supreme Court was a major factor in their choice for president, according to an ABC News exit poll, and, of those, 57 percent chose Trump.