How President Trump Could Reshape the Supreme Court—and the Country

Jeffrey Rosen:

At least half of the country was surprised by Donald Trump’s victory on election night, and Washington is now scrambling to guess how he will lead in the White House and abroad. But the most lasting effect of the Trump presidency could be his power to shape the Supreme Court, where he has one vacancy to fill now and the possibility of more in the years ahead.

Just how could President Trump reshape the highest court—and the country? If Trump sticks to the list of proposed justices he released during the campaign, the court is likely to look and act similarly to that of any other Republican president. But that doesn’t mean Trump’s appointees won’t have the opportunity to shape the Constitution now and for decades to come. In this regard, Trump might want to be careful what he wishes for: It’s possible that a conservative Trump Court would enforce constitutional checks on powers asserted by President Trump himself.

We’ve already heard what kinds of justices Trump plans to appoint. During the third presidential debate, he described the 21 candidates he had identified on two separate lists as “pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

Trump thanked two conservative groups—the Heritage Foundation and the Federalist Society—when he released his short list, and all of the 21 prospective appointees are constitutional conservatives who might be considered by any Republican president. Some stand out as bolder choices than others: Senator Mike Lee, for example, a principled constitutionalist who criticized Trump during the campaign for his proposed “religious test” to ban Muslims, would bring political experience to the court not seen since the appointment of Justice Sandra Day O’Connor. But Lee—who called for Trump to step down as the GOP nominee after the release of Trump’ Access Hollywood tape and cast what he called a “protest vote” for independent candidate Evan McMullin—seems less likely to be appointed than some of the federal and state appellate judges on Trump’s list. Nearly all of those judges—such as Neil Gorsuch and Timothy Tymkovich on the U.S. Court of Appeals for the 10th Circuit—are familiar and respected conservative picks.

In the short term, all of the judges on Trump’s list would restore the balance on the John Roberts Court to the 5-4 conservative-leaning split that prevailed before Justice Antonin Scalia’s death in February, with Justice Anthony Kennedy as the swing vote in the center. Trump could further solidify the Roberts court’s conservative majority by filling Scalia’s seat with a much younger justice. For example, Clarence Thomas was in his forties when he was appointed to the Supreme Court by President George H.W. Bush and has now served for 25 years.

But Trump’s appointee might be more willing to enforce limits on congressional and presidential power than Scalia himself. Many of the younger conservatives on Trump’s list have embraced a posture of judicial engagement rather than judicial deference to the political branches, and many are also more pro-law enforcement on issues involving government searches and seizures than Scalia was.

As a result, the Trump court might pump up Scalia’s decision recognizing the Second Amendment right to bear arms as an individual right and strike down gun restrictions of the kind that are now bubbling up through the lower courts—such as the recent appellate court decision questioning the government’s effort to restrict an elderly man from owning a gun, even though he had been committed to a mental institution 30 years earlier during a brief divorce.

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