What Election 2016 Could Mean For The Supreme Court

Which precedents are in danger of getting overruled in the next few years?

SCOTUS Supreme Court photo by David LatFor many Americans, and especially for lawyers, the future of the U.S. Supreme Court is a key issue in the upcoming presidential election. For example, many Republicans who aren’t really fans of Donald Trump will say that they’re planning to hold their noses and vote for him, “because of the Court.”

But what exactly does that mean? What would a President Hillary Clinton or a President Donald Trump mean for SCOTUS?

Yesterday I attended an interesting event hosted by the NYU Law School chapter of the Federalist Society, The 9th Justice: Which Precedents Will be Overruled in 2017 and Beyond? Professor Josh Blackman of South Texas Houston College of Law, author of Unprecedented: The Constitutional Challenge to Obamacare and the forthcoming Unraveled: Obamacare, Religious Liberty, and Executive Power (affiliate links), shared his thoughts on the direction of the Court. After he spoke, Professor Samuel Estreicher of NYU Law offered commentary.

What would the two major-party presidential candidates mean for the Court? Blackman pointed out the two SCOTUS shortlists released by Donald Trump, but added that whether Trump will actually stick to those lists as president is an open question. (One favorite of Blackman from among the names floated by Trump: Justice Don Willett of the Texas Supreme Court (and, of course, Twitter fame).)

As for Hillary Clinton, her Supreme Court philosophy comes down to a litmus test: whether the prospective nominee would overrule Citizens United. Blackman noted, however, that such litmus tests can create problems; if a possible justice were to declare publicly her opposition to Citizens United, then she might have to recuse in a case challenging that precedent.

After discussing some of the cases from the Court’s last Term where Justice Antonin Scalia’s absence made a difference — Friedrichs v. California Teachers Association and United States v. Texas, affirmed by an equally divided Court, and Little Sisters v. Burwell, which the Court effectively punted on — Blackman turned to October Term 2016, which starts up on Monday. He noted that few cases have been granted certiorari, compared to this same point in time in prior Terms, and the cases that the Court has agreed to hear are, well, a bit boring — i.e., not focused on controversial issues the Court addressed prior to Justice Scalia’s passing, such as abortion and immigration.

When the Court does return to deciding hot-button issues — which it presumably will after a successor to Justice Scalia gets confirmed — what precedents might get overruled? Assuming that Hillary Clinton wins the election (which is Blackman’s current prediction) and appoints a liberal to replace Justice Scalia, Citizens United is not long for this world, according to Blackman. But this is not as big a deal as it might seem, he argued; money will simply find other ways to insinuate itself into politics.

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Also in danger: District of Columbia v. Heller, the landmark Second Amendment ruling. Heller might not get expressly overruled, he noted; instead, it could be narrowed somewhat, or limited to its facts. And it will be interesting to see what happens to the various precedents about the deference owed to administrative agencies — cases like Chevron and Auer, which some justices have criticized.

As for more long-term changes, Blackman predicted that we will see more use by the Court of legislative history (now that Justice Scalia, who staunchly opposed looking at legislative history, is gone). The Court will still start with the text when engaging in constitutional or statutory interpretation — that’s a major legacy of Scalia — but textualism and originalism will probably wane a bit at SCOTUS. It is also possible that liberals might achieve their dream of a “positive rights” revolution, in which the Court recognizes (creates?) new affirmative rights to things like education or health care.

Professors Samuel Estreicher and Josh Blackman at NYU Law School

Professors Samuel Estreicher and Josh Blackman at NYU Law School

Responding to Blackman, Professor Samuel Estreicher concurred with much of this analysis. Estreicher agreed that although “we are all textualists now,” Scalia’s strong form of textualism won’t dominate, and the aversion to legislative history will fade. On Citizens United, Estreicher agreed that Citizens United doesn’t mean as much as people think. The real issue isn’t corporate speech or campaign spending, but the ability of people to make unlimited independent expenditures in the political realm.

Estreicher disagreed with Blackman on Heller, noting that it will take a while for a suitable vehicle for challenging Heller to percolate up through the lower courts. Also, if the next Supreme Court justice ends up being Merrick Garland, a Justice Garland would be unlikely to overrule Heller outright; like Chief Justice John Roberts, Garland cares about his reputation for being fair-minded, and he would be reluctant to overrule a precedent of such recent vintage.

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Areas where we will see some movement in the Court’s jurisprudence, according to Professor Estreicher, include the death penalty, which some justices have expressed a willingness to reconsider (see Justice Breyer’s dissent in Glossip v. Gross); election law, including voter ID laws; and, as discussed earlier, deference to administrative agencies. Chevron and Auer could get overruled (and Estreicher said that he personally wouldn’t be sad to see Chevron go).

During the question-and-answer session, I asked whether a few months of “boring” cases might be a good thing for the Court — a breather of sorts, after several Terms full of politically charged issues. Blackman and Estreicher acknowledged this possibility, while noting that it will only be a matter of time before SCOTUS revisits such divisive issues as the death penalty and immigration.

Responding to a question about Chief Judge Garland’s chances of confirmation, Estreicher predicted that Garland would eventually be confirmed, after Republicans realize that he’s as probably as good as they’ll get. Blackman said he was more doubtful about Garland’s chances, arguing that if the Republicans hang on to the Senate, they might just refuse to confirm anyone to Justice Scalia’s seat — a possibility Blackman has previously referred to as the “Clint Eastwood effect,” in which a seat remains empty for an extended period of time. Estreicher expressed his doubt on that front, arguing that the political cost to Republicans would simply be too high.

On the subject of appointments to the lower courts, Professor Blackman noted the importance of eliminating the filibuster for non-SCOTUS judicial appointments, aka the “nuclear option.” As a result, if the same party controls both the Senate and the White House, its nominees will generally get confirmed.

For his part, Estreicher lamented the exercise of the nuclear option. When giving someone a lifetime appointment, it’s entirely proper to require a substantial consensus rather than a bare majority.

Sometimes nothing gets done in Washington because of divided government — and that’s not necessarily a bad thing. As Professor Estreicher quipped, “I believe in less government through partisan gridlock.”

Unprecedented: The Constitutional Challenge to Obamacare [Amazon (affiliate link)]
Unraveled: Obamacare, Religious Liberty, and Executive Power [Amazon (affiliate link)]


David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.