The Supreme Court and the Next Likely Justice

The United States Supreme Court has the final word on the meaning of the U.S. Constitution and of federal statutes and federal law.  Nine Justices serve on the Court; they have lifetime appointments.  A majority of Justices, just five, decide important questions about freedom of speech, press, and religion; whether the states can limit or ban abortions; whether states must recognize gay marriage; whether citizens have access to courts and juries; or whether the Constitution allows police to stop citizens on the roads or forcibly enter citizens’ homes.  The High Court’s decisions affect governments at all levels, businesses, and citizens.

In early 2016, Justice Antonin Scalia, a conservative Justice appointed by former President Ronald Reagan, died unexpectedly and created a vacancy on the Court. The sitting President nominates a person to fill a Supreme Court vacancy, but the Senate must confirm him or her.

Before Justice Scalia’s death, five Justices had been appointed by Republican presidents, and four Justices had been appointed by Democratic presidents.   Former Democratic President Barack Obama nominated Merrick Garland.  The Republican-controlled Senate, however, refused to hold hearings on him, and no vote on his nomination was held.  After the 2016 presidential election, Republican President Donald Trump nominated Neil Gorsuch to fill Justice Scalia’s spot on the Court.

The Senate, thus, kept the High Court balance as it existed when Justice Scalia was alive: five Republicans and four Democrats.  Many Democrats are furious that the Senate did not hold a vote for Merrick Garland.

If the Senate votes to confirm Neil Gorsuch as a Justice, most High Court observers believe that he will vote much like the late Justice Scalia.  On hot-button social issues – such as abortion rights and gay marriage – Justice Anthony Kennedy, a Republican Justice, voted with the Justices appointed by the Democrats, and five Justices have voted in favor of abortion rights and gay marriage.  Thus, if Mr. Gorsuch is confirmed by the Senate, it is unlikely that the Court’s positions on those issues will change.  The Court generally (but not always) has been friendly to the interests of governments and large businesses.  If Mr. Gorsuch is confirmed, those positions will not likely change.

The three oldest Justices on the Court, Ruth Ginsburg, Stephen Breyer, and Anthony Kennedy, vote or tend to vote “liberal” on social issues.  Justice Ginsburg, a Democrat, is the oldest Justice sitting on the Court and is perceived as a liberal; she turns 84 in 2017.  Justice Breyer, a Democrat, is also perceived as a liberal Justice; he turns 79 in 2017.  Justice Kennedy, a Republican, is perceived as a liberal regarding social issues; he turns 81 in 2017.  If a vacancy opens on the Court from Justice Ginsburg’s, Justice Breyer’s, or Justice Kennedy’s spot during President Trump’s tenure, he will nominate the next Supreme Court Justice.  If he were to name a Justice with the views of Justice Scalia and the Senate confirmed him or her, the Court may shift its position on social issues.

Supreme Court Justices have lifetime appointments.  In this era, it is not uncommon for a Justice to sit on the High Court for 25 years or more.  A Justice’s influence lasts far beyond the term of the President who appointed him or her, but predicting the timing of a High Court vacancy, in practice, has proved to be an exercise in futility.

For many years, Perry Craft has held seminars or published articles for lawyers about the latest United States Supreme Court cases, developments, and trends.  He has appeared on television to discuss the High Court.

If you have questions or comments about the U.S. Supreme Court, contact Nashville Attorney Perry A. Craft.