“Is the Revolution Just Beginning?: The Election of 2016 and the Future of the Supreme
Court”
Howard Schweber
Paper for Presentation at IDC Herzliya, Israel, 9 January 2017
DISCUSSION DRAFT—PLEASE NOTE IF CITING OR REFERENCING
I.
Introduction: Waiting for the Revolution
For fifty years, the story of the American Supreme Court has been the story of a
revolution. A revolution that is coming, a revolution that has arrived, a revolution that failed, a
revolution that has occurred in secret – there are a number of mutually contradictory narratives.
The basic contours of the story are relatively simple, but important to recall. In the
late 1870s, the American Constitution was applied to the actions of State governments for the
first time. For the fifty years that followed, the courts—and especially the Supreme Court—used
their authority to protect the growing corporate economy (the “Lochner Era”) and to shield state
governments from the effects of strong rights claims (as in Slaughterhouse and Cruikshank) and
from the XIVth Amendment’s grant of new powers to Congress under section 5. Then came the
New Deal and a huge shift in judicial philosophy. For the next fifty years—say 1932 until 1980
or so—the Supreme Court was an interventionist liberal institution. The Warren and Burger
Courts, saw the development of new doctrines that imposed strict limitations on States under the
Due Process Clause while simultaneously limiting States’ actions (if those actions were
discriminatory) or encouraging them (if the actions in question were intended to remedy past
discrimination) under the Equal Protection Clause. During the same period federal authority was
found to be nearly unlimited.
And then came the Revolution. At least, it was supposed to. In 1980 Ronald
Reagan ran for President in part on a platform of reversing the liberal excesses of the Supreme
Court. That was not a new idea—Richard Nixon had done the same thing in 1968—but Reagan
had a team of constitutional conservatives lined up. Specifically, the new Attorney General
1
Edwin Meese and two federal judges, Antonin Scalia and Robert Bork were a spearhead for a
movement devoted to revisiting basic constitutional ideals. Scalia and Bork were instrumental in
forming the Federalist Society and supporting conservative legal think tanks. Meese’s approach
was more direct: he instituted, for the first time, ideological litmus tests for government lawyers,
and issued unprecedented Justice Department guidelines for constitutional litigation. Given a
chance to nominate a new Supreme Court justice, Reagan turned to Scalia and then Bork,
although the latter nomination foundered. But Scalia, in particular, was intended and selected to
be the harbinger of a new judicial era along with Rehnquist and later Alito and Thomas. (It is
worth remembering that Kennedy, too, was expected to be a reliable judicially conservative
vote.) Most importantly, Meese, Scalia and Bork led a highly successful campaign to bring
“originalism” into public parlance. It is difficult to credit the extent of their success. Prior to
1980, or the 1970s at the earliest, “originalism” was simply not a recognized category of judicial
interpretation. Today, thanks very largely to the efforts of three individuals, it is practically the
default position of the American public when confronted by any constitutional question.
In 2016 Justice Antonin Scalia passed away. Also in 2016, Donald Trump was
elected President. And also in 2016, the Republican-controlled Senate engaged in a historically
unprecedented stall on the nomination of Merrick Garland. All of which leaves us in a position
of awaiting President Trump’s nomination of a successor to Justice Scalia, and the possibility
that he will have the opportunity to nominate one or more additional Justices in the years to
come. With this as background, this chapter asks, “what are the implications of the 2016 US
Presidential Election for the Future of the US Supreme Court?”
To discuss the future is to bring up the possibility of a “Trump Court,” meaning a
Supreme Court in which not only the late Justice Scalia but also one of the current more liberal
justices (such as Ginsburg) is replaced by a Trump nominee. President-elect Trump has given
some indications of the kind of Justice he might nominate in the form of two different “short
lists” totaling nearly 20 candidates.1 Asked specifically about a replacement for Justice Scalia,
1
By category of current employment, the following are names that Trump has publicly distributed
as possible candidates. Sen. Mike Lee of Utah. US Court of Appeals judges: Thomas Hardiman, Raymon
Kethledge, Diane Sykes, Steven Colleton, Raymond Gruender, Neil Gorsuch, Timothy Tymkovich,
Willam H. Pryor, Margaret A. Ryan. US Dist. Ct. judges: Frederico Moreno, Amul Thapar. State
Supreme Ct. justices: Keith R. Blackwell, Charles T. Canady, Allion H. Eid, Joan Larsen, Thomas Rex
Lee, Edward Mansfield, David Stras, Don Willett, Robert P. Young, Jr.
2
however, Trump’s communications director insisted that there have been no interviews of
candidates, suggesting that the question remains open.2 And Trump has already repeatedly
demonstrated a willingness to abandon campaign pledges. As a result, attempting to predict the
character of a Trump Court are necessarily based on speculation. Nonetheless, particularly given
the makeup of the incoming Senate, it can readily be predicted that the nominee for Scalia’s
replacement will be a judicial “conservative’ in the mold of Meese, Bork, and Scalia, and that
Trump voters and Republican members of Congress alike will be looking to the President to
bring the revolution of 1980 to final fruition.
What will be the likely consequences of two or more appointments of this sort?
For many observers the key issues are the continuing precedential weight of Roe v. Wade, the
degree to which LGBQT persons will be protected against discrimination, and a continuation of
trends in First Amendment jurisprudence that resulted in decisions such as Hobby Lobby and
Citizens United. While these are unquestionably important areas on which to focus, however, for
purposes of this paper I want to consider some other, perhaps less obvious likely consequences
of 2016 for the path of American jurisprudence in a Trump Court of the future.
II.
The Revolution Part I: 1980-2016
In 1981, the new Reagan Justice Department had a very clear and explicit set of
priorities. These were laid out, among other places, in a 1988 memorandum that was distributed
to all DoJ lawyers entitled “Guidelines on Constitutional Litigation, Office of Legal Policy.”
This document specifically identified a set of cases that government lawyers were encouraged to
challenge as “disfavored” precedents: Sherbert v. Verner (1963), Roe v. Wade (1973), Griswold
v. Connecticut (1972), Miranda v. Arizona (1966), Skinner v. Oklahoma (1942), and a general
category of “right of privacy cases”.3 The inclusion of Skinner v. Oklahoma suggests the
radicalism of the agenda: overruling Skinner would essentially mean undercutting the theory that
strict scrutiny should be applied to government actions that are found to violate constitutional
rights across the board.
2
http://www.salon.com/2016/12/29/sean-spicer-donald-trumps-future-press-secretary-saysbusiness-as-usual-is-over-when-it-comes-to-the-new-administration/
3
See Tushnet, Mark, “Meet the New Boss,” 83 N.C. L. Rev. 1205-1228 (2005).
3
Through the 1980s and 1990s there were substantial successes in carrying this
statement of agenda to fruition. Sherbert was effectively overruled by Scalia’s majority opinion
in Oregon Dept. opf Human Services Employment Div. v. Smith (1990), and the right to choose
an abortion guaranteed in Roe was dramatically reconfigured and diminished in Casey. On the
other hand, efforts to overturn Griswold and the general idea of a right to privacy or to do away
with the procedural protections of Miranda ultimately failed. In Dickerson a divided Court chose
to retain the constitutional role of Miranda warnings, and during his confirmation hearings John
Roberts took pains to declare his belief in a constitutionally protected right of privacy.
In other areas the outcomes were similarly mixed. Lopez promised to open the
door to a wholesale reconsideration of federal authority under the Commerce Clause, but that
promise was abandoned when it came into conflict with the War on Drugs in Gonzales v Raich
(2004). On the other hand, Congress’ power under XIV(5) was sharply curtailed by the
application of a new and demanding form of scrutiny in United States v. Morrison (2000). Hints
of the old doctrine of inherent executive authority—what might be called the “ghost” of the longdiscredited United States v. Curits-Wright Export Co. (1936)-- appeared in Dames and Moore v.
Regan (1981) and later in the various memoranda produced by the Bush DoJ, but in cases like
Hamdan v Rumsfeld (2006) that theory, too, was found not to be sustainable. The contours of
free speech doctrine were unquestionably changed from the days of Beauharnais v Illinois,
particularly by Scalia’s rather baffling majority opinion in R.A.V. v. St. Paul, and rights of
“negative association” were found to have new applications to protect the prerogative of
exclusing homosexuals from public or quasi-public activities in Hurley v. Irish-American Gay,
Lesbian, and Bisexual Group of Boston (1994) and Boy Scouts of America v. Dale (2000). In
addition, the 1990s featured the discovery of a startlingly broad and startlingly atextual theory of
State sovereign immunity in a whole series of cases decided on the basis of the XIth
Amendment, understood “not for what it says but for the presupposition ... which it confirms,” a
presupposition which rediscovered principles of State “respect and dignity due them as residuary
sovereigns and joint participants in the Nation's governance.” Alden v. Maine (1999).4
All of these were substantial developments, yet none went nearly as far as the
vision articulated by the DoJ in 1988 would have implied. Some sense of the general attitude
4
Justice Kennedy’s various deployments of “dignity” is a subject deserving of research on its own.
4
among legal observers may be captured by the working title of an anthology in progress
examining the legacy of Justice Scalia: “The Revolution that Failed”.5 During the election of
2016, moreover, there was a palpable sense of expectation that the doctrinal pendulum was
poised to swing back. The nomination of Merrick Garland was a classic Obama move, an
experienced, widely respected, bipartisan figure whom any reasonable (a word that probably
requires scare quotes) Republican could be expected to support. Confronted by unprecedented
Republican obstructionism, many liberals eagerly looked to incoming President (Hilary) Clinton
to name a more progressive, younger, more ideological candidate.
And then Trump won the election. How much was consideration of the future of the
Court a campaign issue? The common wisdom has been that to the extent that voters were
mobilized by concern over the future of the Court those were liberal voters likely to vote for
Clinton to preserve Roe or to overturn Citizens United. It is worth noting, however, that Trump
also talked frequently about judicial appointments, and that conservative candidates since at least
Nixon have mobilized supporters in opposition to a perceived liberal Court. It will take time and
polling data to adequately explore the question of whether the future direction of the Court was a
motivating factor for Trump voters, but it is entirely clear that he perceives himself to have a
mandate and that the current Senate is ready to deliver. In fact, there is already evidence that at
least some Trump voters do not want to see various particular “liberal” precedents overturned,
particularly Roe v. Wade and Nat’l. Fed. Of Businesses v. Sibelius (2012, upholding the
Affordable Care Act’s coverage mandate). It is possible, in fact, that this is an underexamined
area of potential political overreach for the new President. Nonetheless, all evidence suggests
that in choosing future justices Trump will be guided by a version of judicial conservatism at
least as doctrinaire as that articulated in the 1988 DoJ memo. With those thoughts in mind, I turn
to some specific issues in American constitutional law that I expect to be revisited in a postTrump Court.
III.
The Revolution Part II?
5
David Schultz and Howard Schweber eds., forthcoming.
5
Recognizing that nominees of President Trump are likely to be at least as ideologically
committed, and quite possibly more partisan, than the late Justice Scalia, we can anticipate areas
in which a new Court majority would be likely to move.
A.
First Amendment Religion Clauses
One of the areas of genuine transformation in the Roberts Court has been Establishment
Clause jurisprudence. Limitations on public subsidies to religious institutions have been
considerably relaxed by the expansion of the “intervening private choice” idea to an absolute bar
to constitutional challenge (Zelman v Simmons-Harris), and Free Speech doctrine has been used
to require access to public resources of a kind that might have been found unconstitutional in an
earlier era (Rosenberger v. Rectors of Univ. Virginia). We may expect to see a continuation of
this trend, as well as a likely decline in the idea of a constitutional prohibition on “endorsement”
crafted by Justice O’Connor.
On the Free Exercise side we confront an area in which the legacy of Justice Scalia is
likely to come under attack. Scalia’s Smith opinion led to the adoption of federal and State
religious freedom restoration acts (“RFRAs”). Those RFRAs have been used to permit business
to avoid federal mandates on religious grounds, as in Hobby Lobby; attempts are also underway
to use these laws to resist the effects of various antidiscrimination statutes. Given the political
valency of these deployments of arguments from religious freedom, it appears highly likely that
a Trump Court will see fit to restore the Free Exercise Clause as a constitutional absolute.
B. Equal Protection, Substantive Due Process, and State Police Powers
There is little doubt that a Trump Court will take significant action in the area of Equal
Protection. To begin with, it is entirely plausible that a majority will take up Scalia’s invitation in
Adarand v. Pena to declare that race-based preferences can never satisfy the demands of strict
scrutiny. That position, moreover, may well be extended beyond the area of contracting to
include access to higher education.
The most obvious unresolved category for equal protection analysis, however, is sexual
orientation. For years—in Romer, Lawrence, and Obergefell—Justice Scalia called out Justice
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Kennedy for Kennedy’s refusal to straightforwardly declare that homosexuals are a protected
class. In Romer Kennedy’s language of “bare animus” suggested that the law in question failed
rational basis scrutiny. In Obergefell marriage was treated as a substantive due process right
connected to “dignity.” What makes this most interesting is Scalia’s counter-position. “The
majority,” wrote Scalia in Romer, “has mistaken a Kulturkampf for a fit of spite.” In Scalia’s
view, in other words, disagreements over the legal treatment of homosexuals is a cultural dispute
and therefore properly left to the political process. There are two distinct propositions involved
in that logic: that attitudes about sexual orientation is a matter of “culture”, and that culture is a
proper subject matter for democratic politics.
The last point goes to Scalia’s general notion of politics, and of States’ police powers.
The traditional formulation of police powers since at least the 19th century was “health, safety,
welfare, and morals.” Scalia believed to the end that the majority of the Court on which he
served was wrongly depriving States of authority over moral questions, which he described as
“culture”.
A Trump Court is likely to return to standard equal protection categories of analysis.
They are likely to assign sexual orientation no more than intermediate standards of protection,
and to be willing to allow free exercise claims to trump (no pun intended) general
antidiscrimination standards. But most important and most dramatic of all, it is entirely plausible
that a Trump Court will see fit to restore “morals” to the litany of legitimate areas of State
authority. That move, should it occur, would dramatically reshape debates over privacy and other
substantive due process rights; changes in the principles governing regulation of abortion would
be only the tip of a conceptual iceberg.
At that point, whatever standard of equal protection the Trump Court has assigned to
sexual orientation would become the only viable constitutional objection to a whole host of
potential forms of unequal treatment. That equal protection claim, moreover, would be
significantly weakened as well as an appeal to majoritarian moral preference standing alone
would likely assume sufficient weight to overcome anything less than strict scrutiny. Combined
with the likely latitude given to governmental expression of religious attitudes, this return to an
earlier version of police powers promises to dramatically empower religious and social
conservatives in State and local governments by withdrawing most federal constitutional
objections to regulation of private conduct.
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C. State sovereignty ideas, state “dignity” and the Limits of XIV(5)
Justice Kennedy’s appeals to “dignity” have not been limited to descriptions of
individuals seeking to marry. In Alden v. Maine, as noted earlier, Kennedy appealed to the
inherent “dignity” of States as a residuum of sovereignty that predated the Constitution. Justice
Scalia was never satisfied with this kind of formulation, insisting instead that State sovereignty
should be revived outright. It is highly likely that a Trump Court would be willing to accept
Scalia’s invitation, if not to go so far as to flirt with some version of nullification or
reconsideration of federal jurisdiction.
The consequences of a revived theory of State sovereignty would be far-reaching. First
and foremost, the authority of Congress to act to protect individual rights against State
infringement that has already been seen in United States v. Morrison and Shelby County v.
Holder would likely continue. This is directly connected to the discussion of sovereign
immunity, as the Roberts Court has established than XIV(5) legislation is the only context in
which unwilling States can be compelled to appear in federal court. The broader the conception
of State sovereignty the narrower the scope for XIV(5) actions by Congress, and the narrower the
scope of federal courts’ authority to hear challenges to State actions.
Narrowing the scope of permissible remedial legislation is only one part of the
story. Usery was about the conditions under which States are subject to federal regulations of any
kind. A revival of the Usery “States as States” formulation could significantly weaken the scope
of authority of federal agencies over State-run operations from prisons to schools to banks and
power systems, and of the authority of Congress to require States to comply with federal laws.
The longtime practice of attaching conditions to federal funding could also end up facing new
constraints that go beyond the principle that States may not be “coerced” or made
“instrumentalities” of federal law (Printz) to find that federal regulatory and legislative authority
yield to an expanded understanding of State sovereignty and the dignity that it entails.
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D. Executive Authority and Separation of Powers
No one on the Court was more associated with the model of a unitary executive than
Scalia. At one time the concept of a unitary executive referred primarily to relations between the
President and the Executive branch of government. During the Bush administration the doctrine
was expanded to become the basis for a strong assertion of Executive prerogatives vis a vis
Congress and the courts. During the Obama administration we saw a combination of political
attitudes from conservatives: Obama was criticized both for his excessive use of Executive
authority (particularly with executive orders) and, at the same time, his perceived unwillingness
to act in international affairs, most notably when the President asked Congress for approval to
intervene in Syria and failing to receive such approval abandoned his “red lines” commitment. In
his presidential campaign Trump played up the idea of Obama as a weak and indecisive leader,
while various Tea Party-oriented candidates in down-ticket races gave more emphasis to the idea
of Obama as exercising arbitrary and unchecked power.
It is highly likely that Trump would want to appoint justices inclined toward a “unitary
executive” style deference to executive authority in foreign affairs. It is much less clear whether
or his surrogates would think to inquire about this particular aspect of constitutional doctrine
more generally. That poses some interesting possibilities, as many potential judicial nominees
who are otherwise described as “conservative” hold a view that there is a need to restore power
to Congress at the expense of the Executive.
In general,d conservative support for Executive authority does not extend to
administrative agencies and officials, particularly agencies such as the EPA or officials such as
the Secretary of Education. In areas of domestic policy there is considerable appetite among
Republicans in the House and Senate to reassert direct congressional control over the actions of
administrative agencies, most recently illustrated in the controversy over the Consumer Financial
Protection Bureau, an office recently established by President Obama. The controversy in that
case has to do with the fact that the President has sole authority over the selection and hiring of
the agency head, and even the President may not dismiss the head of the agency except for cause.
Congressional republicans have decried this system for its lack of sufficient control and
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accountability, and a federal appeals court in the District of Columbia has agreed.6 That question
is likely to come to the Supreme Court in the next term, at which point President Trump will
presumably only have had an opportunity to nominate one justice. Should the issue be put off or
revisited by a Trump Court, however, it seems highly likely that the unusual design of the agency
would be ruled unconstitutional. More importantly, since the agency is part of the Dodd-Frank
banking reform law, the entirety of that law might be struck down if the provisions describing
the operation of the CFPB are found not to be severable. And even more significant, the
independence of the director of the CFPB is unusual but not unprecedented; it is directly
modeled on the Federal Reserve, itself a long time target of conservatives in Congress.
In other words, in the hands of a Trump Court it is entirely plausible that the dispute over
the independence of the Director of the CFPB will become a cause for revisiting the
constitutionality of an enormous portion of the US governmental system for financial affairs.
One proposal in Congress, for example, would put the CFPB under the control and supervision
of a congressional commission, an approach that would represent a radical expansion of
congressional oversight if it were applied in other cases.
A separate issue involves the possibility of a revival of anti-delegation jurisprudence. The
“delegation doctrine” was the idea that there are constitutional limits on the amount of
policymaking discretion Congress can grant to an Executive branch agency. If Congress grants
unlimited discretionary decision-making authority, according to this argument, the separation
between the legislative and executive branches has been breached. Delegation doctrine has not
been a popular topic in the past several decades, having given way to a general tendency toward
increased executive power.7 A Trump Court concerned with supporting the prerogatives of a
likeminded Congress, however, could readily see fit to revisit this question.
Finally, and relatedly, there is the question of how courts will act when reviewing agency
decisions. In Chevron v. National Resources Council, the Court established a high level of
deference, stating that courts should not question agency interpretations of its enabling statute
(the grant of authority from Congress) so long as the proffered interpretation is “reasonable”.
6
https://www.bostonglobe.com/business/2016/10/11/federal-appeals-court-sides-againstconsumer-agency-created-elizabeth-warren/BVH9XuU4joEfMKi3fL62WO/story.html
7
McGowan, Carl, “Congress, Court, and Control of Delegated Power,” Columbia Law Review
Vol. 77, No. 8 (Dec., 1977), pp. 1119-1174
10
This is separate from the non-delegation problem, which asks whether Congress has gone too far
in granting agency authority. Here, the question is how courts will act when confronted by
agency claims about the amount and nature of delegated authority. Generally, Chevron is
understood to establish an extremely deferential standard. It is noteworthy, however, that
Chevron involved an issue of environmental protection; questions of whether agency mandates
extend to dealing with phenomena such as climate change have already produced considerable
discussion of the desire on the part of political conservatives to rein in agency discretion.
Interpretation of statutory grants of authority is only one kind of question in which
judicial deference to agency expertise might run conflict to a political desire in the context of
environmental law. Another is the role of the courts in evaluating empirical claims; in the context
of assertions of agency expertise this can become a question about the proper role of courts in
determining the status of “science” itself. In Daubert v Merrill Dow the Court, concerned about
the use of “junk science” in tort cases, granted courts authority to review the validity of scientific
findings. In the current context of highly politicized scientific debates (again, climate change is a
prime example) we can easily imagine a Trump Court using the authority to question the validity
of scientific findings as an additional check on agency authority. This would be particularly
interesting as it would bring the level of deference on questions of federal authority in the
Executive branch down to the level currently applied to Congress in the exercise of its XIV(5)
powers (see United States v. Morrison, supra.)
IV.
Conclusion: Predicting the Trump Court’s Revolution
The electoral success of Donald Trump already cautions against confidence in making
predictions about this unusual President-elect and the choices he is likely to make. As I have
suggested, it is plausible that judicial nominations in an area in which Trump will be willing to
grant concessions to the Right-leaning elements of his coalition, as indicated by the names he has
thus far released for public consideration. As I have also suggested, the likely consequences of
such nominations go well beyond the continuing validity of individual precedents such as Roe v.
Wade. Separation of powers, federalism, and the status of executive agencies are all critical
questions with respect to which judicial conservatives have long sought doctrinal changes. First
Amendment doctrine is likely to continue, “the same only more so” in the form of an even more
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relaxed Establishment Clause and a refocused Free Exercise Clause. And the Roberts’ Court’s
recent experiments with Equal Protection doctrine are likely to be reversed.
All of these are predictions about the actions of a Trump Supreme Court. Even the
possibility of such development has already had effects on lower court judges and constitutional
litigants, who are in some cases literally lining up to bring cases that will require the Supreme
Court to reconceive past precedents. The otherwise blatantly unconstitutional Ohio abortion
statute is a case in point8; explaining the decision to proceed with the legislation, Ohio Senat
President Keith Faber said “"One, a new President, new Supreme Court justice appointees
change the dynamic, and that there was a consensus in our caucus to move forward.”9 Another is
the willingness of a federal judge in Texas to enjoin the U.S. Government from enforcing
recently adopting antidiscrimination rules requiring public schools to provide bathroom access to
transgender students,10 a step that follows the actions of the North Carolina legislature which
may have likewise been emboldened by a Trump victory to stake out an otherwise dubious
constitutional position on a socially contentious issue. Thus the effects of the 2016 election on
the Supreme Court are not limited to the identification of plausible judicial nominees: litigation
strategies, the willingness of lower court federal judges to adopt what might previously have
looked like insecure positions, and the eventual effects on lower courts are all also direct effects
of the most recent election.
8
The “heartbeat bill” signed by Governor Kasich bans abortions long before the point of viability
identified in Casey and does not contain exceptions for cases of rape or incest. Two similar “heartbeat”
bills have previously been declared unconstitutional by federal courts.
9
Jason Hanna, Dominique Debuzquoy-Dodley, Max Blau,“Ohio Passes ‘Heartbeat’ Abortion
Bill—Leader Cites Trump’s Election,”
CNN, December 7, 2016
10
Eric Eckholm and Alan Blinder, “Federal Transgender Bathroom Access Guidelines Blocked by
Judge,” New York Times Aug 22, 2016.
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