The Donald and the Supreme Court
Next Judge’s Crucial Test
Silvia Falcetta 19 January 2017

On Friday 20th January, Donald Trump will be officially sworn in as the 45th president of the USA: after taking the Oath of Office and offering his first inaugural address, Trump will begin his mandate. Quite soon, he will officially present his administration’s team; then, it will be possible to understand the political and economic path he will choose for the USA, also assessing whether and how Trump’s policies will effectively mirror the provocative proclaims that have marked his electoral campaign.

In the Us context of spoils system, one of the most debated and waited nominations is that concerning the 9th judge of the Supreme Court, which is actually composed by 8 members and which is constantly under the threat of a deadlock 4-4 decision, with a perfect balance between conservative and progressive judges.

Far from being merely a technical or legal issue, the appointment of judges stands as a crucial political choice and it reflects the idea of judicial interpretation as strongly intertwined with judges’ political inclination, if not subordinated to it.

Along Us jurisprudence, the Supreme Court has always played a crucial role in enhancing, shaping and delimiting a wide range of civil, political and social rights, to the extent that the history of racial desegregation, the path towards the decriminalization of homosexuality and the rough road to the recognition of so-called reproductive rights are closely related to the jurisprudence of the Supreme Court.

Therefore, this nomination may be a good indicator of Trump’s political perspective: if, on the one hand, it is plain that he will appoint someone who is akin to Republican legal and moral culture – just as in the past Democratic presidents have nominated progressive judges- it may be less obvious which conservative trend’s representative will he choose.

To confirm the many wings of Republican identity, the list of suitable candidates includes both exponents of the religious, ultra-conservative right and legal scholars concerned about the distribution of powers between the federal government and national states.

Moreover, the appointment of the 9th judge of the Supreme Court may prove useful to understand the effective willingness of the new-elected President to smooth the harsh social, religious, racial and political divisions underpinned to US society, that have abruptly burst into the presidential campaign.

Last February, the death of judge Anthony Scalia has deprived the Supreme Court of a master of legal science and it has signed the loss of a champion of conservative and liberalist policies, openly against social measures approved by Obama and hostile to a wide range of Democratic strong suits, such as the introduction of laws on gun-control, the promotion of alternative sources of energy, the reform of health-care system and the effective enforcement of the right to abortion.

Despite the burdensome vacancy, last year the Supreme Court has reached a tiny progressive majority, thanks to the swing vote of judge Kennedy. Most notably, with a majority of 5-3, the Court has stroke down Texas abortion laws that aimed at closing down the greatest majority of clinics where it is possible to abort; nevertheless, pro-life groups and right-winged organizations have gone to the barricades in order to bypass the Supreme Court’s decision and, above all, they are pressing the new president to appoint a pro-life judge that will overturn the jurisprudential approach insofar described.

Between July and September 2016, Trump released two lists of candidates to the Scalia’s vacancy, including some of the most conservative legal scholars in activity, and he described them as “representative of the kind of constitutional principles” he values “as president”.

In particular, most extremist positions concern women’s reproductive rights and abortion issues monopolize the agenda of many candidates.

Judge William H. Pryor, for instance, has defined the landmark Roe vs. Wade ruling, that upheld a woman’s right to reproductive choice, as the “worst abomination in the history of constitutional law”, assessing that no reasons might justify abortion, since it would lead to the “slaughter of millions of innocent unborn children”.

On similar grounds, judge D. S. Sykes fiercely opposes to contraceptive mandate – a state or federal regulation requiring that health insurances must cover some contraceptive costs in their health insurance plans. Judge Raymond Gruender displays a quite similar attitude, assessing that employer’s exclusion of birth control coverage from their female employees’ health scheme does not amount to discrimination.

Moreover, Gruender has led a majority that permitted South Dakota to enforce a law requiring doctors to tell women that abortions “terminate the life of a whole, separate, unique living human being” and that those who abort are at greater risk of committing suicide.

Also judge Charles T. Canady has gained Republican praise as a watch-dog against abortion, most notably for inventing the phrase “partial birth abortion”; moreover, Canady has filed one of the most problematic opinions of US recent criminal jurisprudence. While sitting in the Florida Supreme Court, he voted against reducing death penalty to life in prison for a murderer, adducing striking arguments: Canady did not dispute that death penalty was effectively disproportionate, under the circumstances of that case, but he stated that the US Supreme Court did not require to consider the principle of comparative proportionality and, hence, he asserted that also Florida Supreme Court should be barred from applying such a principle. This opinion may have gained the support of some extremist right-winged supporters of capital punishment, but it has certainly raised many more rebuttals, among which it’s noteworthy that by chief judge of Florida Supreme Court, Jorge Labarga, who made clear not only his personal position but also that Florida Supreme Court, “as a body”, would continue to consider such a principle.

Also judge Raymond Kethledge and judge Tymothy Tymkovich are popular because of their anti-progressive attitude: the former gained the attention of Republicans for rejecting Obama’s policies in cases concerning environmental and employment discrimination issues, while the latter both championed for the 1992 anti-gay rights ballot in Colorado and recently authored an opinion that would give religious conservatives sweeping ability to ignore laws they object to on religious grounds – on birth control coverage as well as on gender equality.

Turning to moderate candidates, a common feature might be traced in the restrained and originalist judicial philosophy they support. In particular, the Constitution should not be interpreted as a living instrument and Courts should avoid law creation, as well as the application of legal sources to facts different from those explicitly mentioned in the text; on the contrary, judges should mainly abide to the wording of laws and to the intention of the original drafters.

Most notably, judge Neil Gorsuch and judge David Stras are known for such perspective; also judge Thomas Hardiman shares this approach but he stands as a quite multifaceted personage: on the one hand, he has written against limiting the right to hold guns without a permit but, on the other, he has also ruled in favor of a prisoner who wanted to directly file his case to the federal court, after the Pennsylvania Department of Corrections didn’t respond to the man’s grievances.

Moreover, he has spoken in favor of detaching the enforcement of law from one’s personal beliefs – although for European readers such a statement might appear obvious, in the light of previous candidates ‘profile it sounds as innovative and noteworthy.

Another candidate who does not apparently matches with Trump’s program, especially on immigration policies, is judge Federico Moreno. He shares a Republican background and President George H.W. Bush nominated him in his current position in 1990; nevertheless, judge Moreno has ordered the government to pay nearly a million dollars to six innocent people tortured in a U.S. drug sting in Honduras and he has ruled that the United States erred in returning 15 Cuban refugees who were stranded on a bridge in the Keys. He would be the first Hispanic appointed to the US Supreme Court.

In the probable effort to block minorities ‘vote, Trump has also included a candidate from black community, judge Robert Young, and one from South-Asian minority, judge Amul Thapar; from the beginning, however, they have both appeared more as the outcome of electoral tactics, rather than as candidates effectively able to gather wide consensus among Republicans.

In any case, from a pragmatic perspective, the choice of a conservative but moderate judge might ensure the Senate confirmation within a short time, since Democratic senators might avoid to require a supermajority or to use filibuster to block Trump’s nominee.

Furthermore, the appointment of the 9th judge will test whether Trump really wants to be the “President of all Americans”, as he has declared immediately after winning the elections; it would be, indeed, extremely problematic if the highest judicial Court of US legal system enforced and gave legitimacy only to a narrow moral and political perspective, leaving no room for the many others that coexist in American society.

However, the uncompromising political tone usually adopted by Trump makes clear that the margin for moderate choices is quite tight; moreover, from Trump’s latest declarations on the issue, it seems that hard times are coming for all those who support a constitutional jurisprudence aimed at fostering pluralism, at encouraging the respect for differences and at protecting minorities.

In October, during the third presidential debate Trump said that “the justices that I’m going to appoint will be pro-life” and that “they will interpret the Constitution the way the founders wanted it interpreted”, somehow blinking the eye to the Theocon right.

In addition, it has to be emphasized that, during his mandate, Trump will probably have to deal with other vacancies in the Supreme Court: judge Ginsburg and judge Kennedy are already in their 80s while judge Breyer is approaching the eight-decade mark, and it is likely that they will retire from their duties.

Therefore, Trump will benefit from the opportunity to impose a marked shift of the ideological balance of the nation’s highest court for the next several decades; neither Trump’s political program nor the composition of his electoral base suggest he might be inclined to any compromise with moderates.

In conclusion, it seems that, in the nearest future, the Supreme Court will be marked by the hyper-partisanship already pervading US society and that its decisions will deeply alter the actual jurisprudence on civil and social rights, provoking continuous and harsh outcries from the large part of society that will probably go unheard.

Silvia Falcetta received Ph.D. in Sociology of Law from the Department of Legal Studies, “C. Beccaria” at State University of Milan in 2016. Her field of research deals with judicial interpretation and human rights and with the impact of judges ‘legal culture on their final outcome.