The Supreme Court Under Trump Probably Will Look a Lot Like the Supreme Court Under Obama
Before Antonin Scalia died, the median Justice on the Supreme Court with respect to most issues was Anthony Kennedy. After Donald Trump fills the Scalia vacancy, presumably the median Justice on the Supreme Court will be Anthony Kennedy again. This assumes, of course, that the 46 Democrats and two independents in the Senate do not filibuster a Trump nominee and that Trump nominates someone to the right of Anthony Kennedy. I also assume that Justice Kennedy will not retire under a President Trump, as important elements of Kennedy’s legacy (most notably, Obergefell) will be at risk if the Court swings to the right. Justice Kennedy as the median Justice? That’s a world familiar to us all.
Okay, you say, but what if Justice Kennedy or a Justice to his left leaves the Court involuntarily in the next four years? In tax law, we’re statutorily required by 26 U.S.C. § 7520 to make these kinds of calculations in order to determine the value of annuities, life interests, and remainders for estate and gift tax purposes. The exercise implicitly (or really, explicitly) forces us to contemplate tragic events involving ourselves and our family members. The analytical tools developed for the exercise also apply to matters of deep national as well as personal significance.
The IRS and Social Security Administration both publish actuarial tables to assist; the Social Security tables are more recent and gender-specific, so I’ll use those here. Based on the Social Security figures, the probability that the five more liberal Justices all serve out Trump’s term (if I’m doing the math right) is 41.4%. And note that this is an underestimate because the Social Security numbers are based on age and gender, but not on income or education level — both of which are positively correlated with longevity. (On the other hand, this estimate doesn’t take into account the possibility of an involuntary retirement — see, e.g., William Douglas. And it doesn’t take into account the possibility of Trump serving not just four years but eight.)
In the event that Trump fills a second vacancy during his four-year term, I assume he would choose a Justice to the right of Justice Kennedy and to the right of Chief Justice Roberts. I think this is a safe assumption based on the potential nominees whose names Trump has mentioned, though with the caveat that ideology is not a one-dimensional spectrum and so some oversimplifying is inevitably happening here. In the event that Trump appoints a successor to Justice Scalia and replaces one of the five more liberal Justices on the current Court, the median Justice becomes Chief Justice Roberts — the same Chief Justice Roberts who upheld the individual mandate and who voted with Kennedy and the liberals in Arizona v. United States. Indeed, on some issues (e.g., campaign finance), Roberts already was the swing vote prior to Justice Scalia’s death. So Chief Justice Roberts as the median Justice? Again, that’s not so unfamiliar.
What is the probability of the Chief Justice being the median Justice four years from now? Assuming that neither Chief Justice Roberts nor anyone to his left leaves the Court voluntarily, and again using the Social Security numbers, I calculate a probability of 39.6%. So that’s a probability of 81.0% that the median Justice at the end of 2020 will be either Justice Kennedy or Chief Justice Roberts. Not the outcome that liberals expected as of Tuesday morning, but not so different from the world we lived in at the beginning of February.
That’s still a 19% probability of Trump replacing two or more of the six least conservative Justices by the end of 2020. With two vacancies plus the Scalia seat, we’re then in a world where the median Justice on most matters is Samuel Alito or one of the Trump appointees. This is why I thought back in February that it might have made sense for President Obama to nominate Nevada Governor Brian Sandoval when that seemed (remotely) plausible.
As last night reminded all of us, low probability events sometimes occur. And if I’m doing the math right, which on this point I’m pretty sure I am, 19% is well nigh one-in-five. But the overwhelming likelihood is that the ideological midpoint of the Supreme Court four years from now won’t be too far from where it was nine months ago.
