Trump, the Supreme Court, and the Dog that Won’t Bark (at Least Not for a While)

Despite President Obama having the opportunity to remake the U.S. Supreme Court with one nominee, Donald Trump will need to wait for the same opportunity. Not because Congress will confirm Judge Garland, and not because Congress won’t confirm Trump’s nominee, but because of the ideological configuration of the Court, and where Justice Scalia fell in that current configuration in relation to the other justices.

Stipulating that judicial ideology is not the same thing as political ideology, nonetheless, no one disputes that Scalia fell on the “conservative” side of the Court. He held down the Right side of the Court particularly with Justice Thomas. Justice Alito and Chief Justice Roberts of course round out the more-conservative side of the Court.

With Justices Breyer, Kagan, Ginsburg and Sotomayer on the “Left,” this made Justice Kennedy the crucial median voter. As the median Kennedy was the pivotal voter, and that meant that he often could determine the majority decision on the Court, and had significant influence on the content of the opinion associated with that decision.

If President Obama replaced Scalia with a new justice anywhere to the Left of Kennedy, Obama would effectively have shifted the decisionmaking on the Court leftward. At the very least, Kennedy would no longer be the pivotal justice as often as he is today. Obama only needed someone more liberal than Kennedy to change outcomes on the Court.

Even if, as expected, President-elect Trump were to nominate a justice to the Right of Kennedy, this would at most only preserve the status quo ante that existed on the Court prior to Scalia’s death. Any appointee to the Right of Kennedy merely reestablishes Kennedy as the median justice on the Court, insuring a continuation of Kennedy’s pivotal role in voting on the Court. But that’s the best that Trump could do given the current configuration of the Court.

Of course, judicial influence on the U.S. Supreme Court is not simply a matter of voting configuration of the justices in relation to each other. Even dissenters (and concurring justices) can affect other justices. There perhaps is no better example of this influence than the effectiveness of Scalia’s war against the use of legislative history in statutory-interpretation cases. At the start of Scalia’s appointment to the Court, the overwhelming majority of statutory-interpretation decisions cited legislative history. This percentage plunged to a small minority with Scalia on the Court. (Scalia’s version of originalism was textualism; he rejected legislative “intent,” and so rejected much of the legislative history of a statute, as immaterial to reading a statute properly.) That said, it is doubtful that even if Trump wanted to replace Scalia that he could find a nominee who could equal Scalia’s ability to influence the Court both informally as well as formally.

Without intending to echo the movie Deadpool, one must nonetheless note that Ginsberg is 83 years old, Kennedy himself is 80 years old, and Breyer is 78 years old. Replacing any of these justices with a justice to the Right of Kennedy would move the Court to the Right, making the new justice, or perhaps Roberts, the median justice. But that remains in the indefinite future. For time being Trump can at most reestablish the status quo ante that existed on the Court prior to Scalia’s death.