And the SCOTUS Nominee Is…
What’s Next for the Supreme Court: 5 Things You Need to Know
On February 13, 2016, Justice Antonin Scalia passed away and his seat on the Supreme Court has remained vacant ever since. Fast forward to almost a year later — past months of Senate obstruction, a presidential election, and the failed nomination of Judge Merrick Garland — and we have a new Supreme Court nominee from a new president.
Judge Neil Gorsuch was just announced as President Donald J. Trump’s nominee for Associate Justice of the United States Supreme Court. What comes next will be a game of high stakes political ping pong, the outcome of which politicos and insiders will be tracking closely in the coming months. As we wade through the litany of speculation and predictions, let’s take stock in what we know and what we can expect for the battle ahead.
Here is a list of the five things you need to know about the future of the court and its 0T16 docket as the fight for SCOTUS gets under way.
1) Whatever you do, don’t panic.
This is only one round in what could be a longer fight for the Supreme Court under the Trump administration. But for right now, President Trump only gets to fill one seat. No matter what happens with this nomination — whether it’s Gorsuch or someone else the Senate deems appropriate — the makeup of the Supreme Court will not change. The conservative majority will remain, with all eyes and ears focused once again on Justice Anthony Kennedy’s swing vote. This means a continuation of status-quo 5–4 splits on controversial decisions, and a continued crawl towards the right in the high court’s jurisprudence.
All this to say, you should fight the feeling of panic and remember that Justice Scalia was an ultra-conservative who set the bar really high. If Gorsuch is as Scalia-esque as court-watchers are saying, he’d be merely filling Scalia’s seat and not changing much in the way of case outcomes and court rulings.
2) The timeline of confirmation points to Spring.
It took 72 days for President Obama to confirm Justice Elena Kagan to the Supreme Court, and 87 days to confirm Justice Sonia Sotomayor. If we follow this pattern, Judge Gorsuch won’t be confirmed until April at the earliest, assuming all goes according to plan. But when has anything ever gone according to plan with Mr. Trump?
Also, keep in mind that the Senate is currently scheduled for vacations, or what they call “state work periods,” for fourteen days between now and the end of April: February 20 through 24, March 17 through 17, and April 10 through 21.
If Judge Gorsuch gets sworn in before the end of OT16 in June, he could theoretically vote on cases that were argued earlier in the term, even though he wasn’t yet on the bench for oral arguments. However, justices have traditionally refrained from doing so. Any cases that result in a tie vote this term would likely be reheard the following term before a full bench.
3) The docket and issues affected, or not.
The justices were reading the tea leaves before any of us thought to, curating their caseload with the understanding that they were unlikely to get a ninth colleague for quite some time. For OT16, they took on one of the lightest caseloads in over fifty years, largely side-stepping controversial cases for fear of reaching a tied outcome. In fact, there are three cases justices have continuously stalled on scheduling for oral arguments, likely because they have determined the issues in the cases to be too challenging for an eight-member court to decide.
Looking beyond the current docket, it’s impossible to know for sure what issues the Supreme Court will decide next. Most court watchers would agree that even with Judge Gorsuch on the bench, decisions on abortion rights, marriage equality and affirmative action remain secure and unlikely to be overturned. However, questions concerning political gerrymandering, religious freedom, environmental regulations, and public sector unions are all destined for the high court in the next couple of years. Regardless of the trajectory of this nomination process, anyone on the progressive side of those issues has a bumpy road ahead in the highest court.
4) The survival of the filibuster is paramount.
In the weeks leading up to the nomination, there has been a lot of talk around the “nuclear option” — a change in the Senate rules that would remove the 60-vote requirement for Senate confirmation of Supreme Court nominees. It’s the one card Republicans could play to ensure that Gorsuch makes it out of the Senate and over to 1 First. Headlines and soundbites have been playing the will-they or won’t-they game for weeks, even though there’s good reason to believe the filibuster will survive.
Democrats will want to play the long game here and do everything they can to preserve the power of the minority in the Senate in case Trump gets to nominate another justice. Replacing Scalia with a conservative judge is one thing, but replacing a Ginsburg or Breyer or Kennedy with a conservative is something else entirely. The loss or retirement of any of those three would mean the opportunity to push the court toward greater conservatism, not the stasis that we’re seeing now.
This is the only thing anyone should be thinking about. Democrats and Republicans alike.
5) The future of Gorsuch will predict the future of SCOTUS.
Whatever happens with the nomination and confirmation of Neil Gorsuch will directly impact any future Supreme Court nominations, under Trump or any other president. Following the obstruction of Judge Garland’s nomination and the least predicted presidential election outcome in the history of America, political tensions around the Supreme Court are at an all-time high. How party elders handle this moment in political time will surely decide whether SCOTUS nominations, and in turn the Supreme Court as an institution, will continue to be as fractured as they were this year.
The Supreme Court confirmation process is central to its vitality. Our leaders’ ability to nominate and confirm qualified individuals to our nation’s highest court is one of their most solemn and significant duties they perform. Poisoning the well will partisanship only poisons the Supreme Court.
It’s possible the obstruction of Garland and the election of Donald Trump have already changed SCOTUS nominations forever. However, the Senate has an opportunity to move away from the divisiveness following Scalia’s death by showing true leadership in their confirmation of a Trump nominee. Now is the time to draw a clear line between the Supreme Court and politics.
If not now, then maybe never.
Mackenzie Long is an Account Associate at RALLY and the author of SCOTUSDaily, presented by Fix the Court, the only tipsheet covering the best of Supreme Court news and politics every day. Leading journalists, attorneys, law professors, and scholars from across the country use her tipsheet as their morning briefing on what’s happening in and around 1 First Street.
