The Cato Institute

What Does Trump’s Win Mean for the Supreme Court?

Although the vacancy left on the Supreme Court by Justice Antonin Scalia’s passing—and judicial nominations more broadly—didn’t play as big a role in the campaign as leaked videos and emails, this issue is now at the forefront of the new administration’s transition plan. 

So, what does a Trump presidency mean for the Court?

At first glance….

• The Merrick Garland nomination is dead, and Senate Republicans’ strategy of not even considering Garland worked.
• Anthony Kennedy will almost certainly continue to be the “swing justice” on most controversial issues.
• An open question is what happens when Trump realizes that the sorts of judges he’s been advised to appoint would rule against him on various matters.
• If you live by executive action, you die by executive action—which means that many high-profile cases looming on the Supreme Court docket will simply go away.

Read more…

President Obama Announces SCOTUS Nominee

Just minutes ago, President Obama officially nominated Merrick Garland, chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, to the Supreme Court. 

While Chief Judge Garland is assuredly a liberal vote on the most controversial, culture-war issues, he’s just as surely the most moderate Democratic-leaning jurist under consideration on cases that fly under the radar.  

“Merrick Garland is the safest, least ideological nominee President Obama could have made, which means that the president wants to put pressure on Senate Republicans more than he wants to energize his base,” writes Ilya Shapiro, Editor-in-chief of the Cato Supreme Court Review. "But in this hazy, crazy, bizarre election year, this Supreme Court seat should remain vacant until the American people can decide whether they want to swing the balance of the Supreme Court, possibly for decades.”

Justice Antonin Scalia, who passed away earlier this year, was one of four conservatives on the Court. When joined by Justice Anthony Kennedy, Scalia formed a majority crucial for enforcing the First and Second Amendments, federalism, the separation of powers, and other constitutional protections for individual liberty.

If he’s replaced by a progressive or “moderate” jurist, there will likely be no further check on the sorts of executive abuses that have only increased under a president who thinks that when Congress doesn’t act on his priorities, he somehow gets the authority to enact them regardless.

That’s a legacy that will last a long time…and span many presidencies. 

Learn more… 

• “Rapid Reaction: Supreme Court Nominee,” by Ilya Shapiro
• “Delay Scalia Replacement? Yes, Let the People Decide,” by Roger Pilon
• “Don’t Confirm Scalia’s Replacement Until After the Election,” by Ilya Shapiro