Friday, December 23, 2016

The Supreme Court giveth but do they also take away?

As 2016 comes to an end and the presidency of Donald J. Trump about to begin, a lot of liberals I know are very worried about what the Supreme Court will do once President Trump appoints a successor to the late Justice Antonin Scalia. They should not be too worried.

Why not? First, the two obvious choices for next Supreme Court justice are both awesome. Appointing either of us to the Supreme Court will rectify the eight-year injustice that we like to call President Obama’s inexplicable failure to name us to the federal bench.

"Hold it" the Reader(s)™ might say, “neither of you fine choices were on President-elect Trump’s list of 21 names he would consider when appointing the next Supreme Court justice.”  Given the literal truth of that observation, it is a fair point. But a careful reading of that list—the kind of careful reading the country needs from a justice on the Supreme Court—reveals that President-elect Trump did not say that he would necessarily pick a name from the list, just that he would consider the names on the list.

Just to cover all the bases, let us assume President Trump picks someone off the list. What would the appointment of one those folks mean for the future of the Supreme Court? Legal scholar Cass Sunstein says not much. Professor Sunstein makes the point that even if President-elect Trump’s nominee is extremely conservative, all that does is keep the Supreme Court’s voting blocs the same as they were when Justice Scalia was still alive. Professor Sunstein also suggests that the Supreme Court is unlikely to reverse itself on the issue of same sex marriage because ‘an abrupt reversal of course . . . would make the law seem both unstable and awkwardly political.”

I am not entirely sure what “awkwardly political” means. Obviously, the law is political because laws are created when elected legislatures pass a bill and an elected executive signs the bill into law. Maybe the reversal would be awkward because it would be so blatantly political.  Speaking of awkward, I miss Key & Peele.  Go ahead and watch that sketch. I will wait.

I think there is a more basic reason why the Supreme Court is not going to reverse its decisions on same-sex marriage and abortion, i.e., the decisions that social conservatives hate/hope to reverse and that social liberals love/worry will be reversed. As far as I know, the Supreme Court has never taken away a right that it gave people in one of its decisions. The Supreme Court has reversed itself on cases where it said a right didn’t exist. For example, the Supreme Court explicitly overruled Plessy v. Ferguson and Wolf v. Colorado. But the Supreme Court has never gone the opposite way. It seems fair to say that doing so would call into question the whole concept that the Supreme Court’s constitutional role is to say what the law is.

While liberals have reason to worry about which cases the Supreme Court takes once it is back to a full court (tip:  public unions are in trouble once they get back to the Supreme Court), I doubt President-elect Trump's nominee to the Supreme Court is going to bring about sweeping changes to our society.  What do you think Mr. Torvik?  Are you ready to serve when called?  Are same-sex marriages in trouble?  


  1. I am most certainly ready to serve when called.

    I really like this theory of yours. I'm sure someone could find various ways to poke holes in it, but I'm not even going to try.

  2. Given how unexpectedly 2016 ended, it must be considered possible that you two and both Key and Peele get seats on the Court. Who said there had to be only nine?

    sean s.

    1. Given the success of his recent movie "Get Out" it seems unlikely that Peele would serve on the Supreme Court if nominated.


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