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The U.S. Supreme Court: What Now?


When Donald Trump is inaugurated as the 45th President of the United States on January 20, one of his first orders of business will be to fill the seat on the U.S. Supreme Court that was left vacant by the February death of Associate Justice Antonin Scalia.

To get a sense of where the court might be heading in the next four years, we spoke with Robert Hume, PhD, professor of political science and chair of the political science department at Fordham.

Full transcript below

Patrick Verel: Now, the Supreme Court has been short a member since February and President Obama’s current choice for or replacement of Merrick Garland has not been granted a hearing by the Republican controlled Senate. Now that Obama is going to be succeeded by Trump, what chance do you give Garland of getting confirmed, and can you imagine a scenario where Obama declares the Senate has abandoned its role to “advise and consent” and simply appoints Garland to the bench?

Robert Hume: I think, unfortunately for Merrick Garland, there is about a 0% chance that he is going to end up on the U.S. Supreme Court at this point. If there was any chance that he could’ve gotten on the Supreme Court, it would be for Obama to make a recess appointment, but liberals, conservatives alike basically restricted the President’s use of recess appointment power a couple terms ago by saying that the Senate can determine for itself when it is in recess. All the republican controlled Senate needs to do is have pro forma sessions at the end of their regular session and there’s no chance to use the recess appointment powers.

There is some precedent for this. Before President Johnson tried to leave office in the late 1960s, he tried to appoint the successor for Earl Warren, so Earl Warren announced his retirement pretty late in Johnson’s term, I think with the hope that Johnson would replace him, and what President Johnson wanted to do is get Abe Fortas, but Congress wouldn’t have it. Johnson wasn’t able to do that and so the appointment ended up falling to Richard Nixon who appointed Warren Burger to the court.

Patrick Verel: On January 20, the Republican Party is going to control the President’s office and both houses of Congress, and potentially the tie-breaking vote in the Supreme Court. Is there a precedent for this type of situation?

Robert Hume: It is absolutely a pivotal time on the Supreme Court right now. What I could see is that the politics of these upcoming Supreme Court appointments could end up being similar to the very divisive, the very ugly politics that we saw in the 1980s when Reagan tried to put Robert Bork on the Supreme Court. I have every expectation that Anthony Kennedy, who is the current swing vote, who was appointed by a republican, so he was appointed by Reagan, and is 80 years old. I have every expectation that Kennedy is going to retire within the next few years. Because he is the swing vote, that’s going to end up being very contentious.

Patrick Verel: What future cases could be affected by a Trump Supreme Court appointee?

Robert Hume: Affirmative action is very vulnerable right now and the precedents are set up in such a way that if a five, four conservative majority decided to do away with affirmative action and education altogether they could do that. I think the Voting Rights Act is very vulnerable. The Shelby County case from a few terms ago ineffectively made the Voting Rights Act defunct, but I could see a five, four conservative Supreme Court majority putting the nail in the coffin of the Voting Rights Act. I think abortion is vulnerable, although there the politics is so contentious that I think even a five, four conservative majority is going to be cautious there in ways that maybe they wouldn’t be with affirmative action and voting rights. Also, I think if there was some hope after this election that we would see Citizens United overturned and a return to more aggressive campaign finance regulations, I think that hope is gone.


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