Lots of people who don’t otherwise care for Donald Trump or Hillary Clinton say they’re going to vote Tuesday based on which presidential candidate will be best for the Supreme Court. With the hours ticking away, it’s worth running through the three most plausible scenarios to see what the election outcome will mean for the court.
Most desirable for liberals will be if Clinton wins the White House and gets a Democratic majority in the U.S. Senate. If that happens, the lame-duck Republican Senate might or might not confirm the relatively moderate Judge Merrick Garland, President Barack Obama’s nominee to fill Justice Antonin Scalia’s seat.
It will depend on what prevails: senators’ strategic interests in keeping the court’s judicial ideology as conservative as possible, or senators’ individual interests in preventing future primary challenges from the right. It’s perverse, but a Democratic Senate means Republican senators will know that they can wait until January to vote against any and all Clinton judicial appointees and still lose. That protects them from the criticism that they approved a nominee who will at least sometimes cast liberal votes.
Clinton could very well still renominate Garland to make a point about his qualifications and avoid major fight at the beginning of her presidency. Regardless, if she has a Democratic Senate, the court will swing liberal. For the first time since 1969, five justices will be Democratic appointees. If Ruth Bader Ginsburg, 83, and/or Stephen Breyer, 78, choose to retire while Clinton is still president, that majority could continue long into the future.
The result would be an epochal change in the politics of the court. Almost unconsciously, liberal justices have become more attuned to statutory text and the original meaning of the Constitution over the last quarter-century. These are the twin legacies of Justice Scalia in statutory interpretation and constitutional law, respectively. Both could erode under a liberal majority. The justices may become freer in interpreting statutes based on their legislative purpose and interpreting the Constitution as an organic, evolving document.
The metaphor of the living Constitution was invented by Justice Oliver Wendell Holmes in 1920. If Clinton wins and enjoys a Democratic majority, the centennial of that idea could well be a celebration of the metaphor’s victory.
A more chastened scenario for liberals would be for Clinton to win while the Senate remains Republican. It’s conceivable that a Republican Senate would refuse to confirm any Clinton nominee. Several Senate Republicans, including Texas’s Ted Cruz, have suggested such a blockade recently, although others have demurred.
If the blockade happens, the crucial question is whether it costs Republicans so much that they end up backing down and accepting a compromise in which moderates could be confirmed. It’s actually a bit hard to imagine a better compromise candidate than Garland. Any further right, and Clinton almost certainly would refuse to nominate the candidate. Any further left, and even more moderate Republican senators might not be prepared to make the deal.
If there’s obstructionism but no blockade, the court will get its moderate liberal majority, with Garland very possibly the swing voter on, for example, criminal justice issues. But there would be reduced incentive for Ginsburg or Breyer to retire. (Anthony Kennedy, 80, is another story. He’s evolved into one of the great liberal justices, but in his own estimation he’s still pretty conservative on a range of issues, especially federalism. He will resign when he feels like it, and would not mind one way or the other if his replacement turned into a long fight.)
Then there’s the scenario of a Trump victory, which if it occurred would almost certainly come with a Republican Senate. Scalia would be replaced by a conservative, possibly from Trump’s list, which was published precisely in order to bring movement conservatives like Cruz into the Trump tent.
The Trump nominee would probably be more conservative even than Scalia. The late justice had a little-known liberal side when it came to sentencing guidelines (which he hated) and the interpretation of criminal laws (where he favored the rule of lenity that reads ambiguous statutes in favor of the defendant). He also wrote an important dissent, joined by Justice John Paul Stevens, denying the executive branch the right to hold U.S. citizens as enemy combatants without trial.
In contrast, Trump’s named potential nominees are bulletproof, devoid of liberal weakness, however quirky. Trump might secretly want to nominate someone more moderate, but a Republican Senate would have no qualms about blocking such a nominee.
If Trump wins, the next four years would see liberals offering daily prayers for the health and longevity of Ginsburg — and begging Kennedy not to retire and thereby endanger the legacy of his gay-rights jurisprudence.
In the meantime, the court would go back to the 4-4 split with Kennedy in the middle, which has been its configuration in the decade since Sandra Day O’Connor retired in 2006.
If Trump got to replace Breyer, Ginsburg or Kennedy, the court would get a clear conservative majority that could last awhile. The court’s conservatives would then all be younger than Clarence Thomas, who is now 68. There would be no liberal chance to restore balance until Thomas retires — and Thomas will certainly stay put if there’s a Democratic president in office.
The upshot is that the future direction of the court could turn on this election to a greater degree than at any time since 1988. The next phase will be extremely interesting to court watchers — which increasingly means everybody.
Noah Feldman is a professor of constitutional and international law at Harvard.