The Blog

Donald Trump And The Supreme Court

With everything else going in Washington, it's worth paying attention to the Court, it's where lasting and seismic change could take place.

Diana Ross had her trusted Supremes and it looks like Donald Trump is going to get his too!

In the tumultuous first month of Donald Trump's presidency, amongst the immigration bans; the challenging Cabinet appointments; the fights with everyone from Nordstrom to the Australian Prime Minister; and the whole issue of Russia; he might well have made his most enduring decision.

President Trump nominated Judge Neil Gorsuch to the US Supreme Court.

Arguably, one of the most important decisions a President gets to make is to appoint a Supreme Court justice. A President can only serve a maximum of eight years but a Supreme Court Justice can serve decades, limited only by impeachment, death or their decision to retire.

In February last year, the surprise death of Associate Justice Antonin Scalia left a vacancy on the court, which it was assumed would give President Obama an opportunity to make his third appointment to the Court and help secure his legacy for many years to come. The significance of this cannot be underestimated. Scalia was appointed by President Reagan and had served on the Court for thirty years as its most conservative voice. Undoubtedly a brilliant legal mind, his views were consistent and often delivered in a forthright and belligerent way, especially when he was on the losing side.

The Court has been very evenly balanced for over a decade with many crucial decisions decided on the thinnest margin of 5-4. Scalia's death presented an opportunity to dramatically tilt the court by replacing the most conservative voice with a moderate or liberal one. President Obama played cautiously and nominated Justice Merrick Garland, an exceptionally well-regarded judge who was considered to be a safe choice who would not unduly provoke the Republicans.

Why did he care? Whilst the President gets to nominate judges, the Senate has to ratify those choices and the Senate was controlled by the Republicans. This is where things unraveled for Obama and Garland. Senate Majority Leader, Mitch McConnell refused to allow Garland's nomination to be considered. He argued that it was too close to the election for the incumbent President to make such a significant choice and it should be up to the next President to make the selection.

McConnell's argument wasn't based on precedent and was really a political decision rather than a procedural one. President Obama protested, as did many of the Democrats, but to no avail. Justice Garland's nomination was becalmed and there was nothing that Obama could do about it. The election happened and Justice Garland's nomination fell with the end of Obama's presidency.

That left the new President with a glorious gift, a chance to nominate a Justice as one of his first acts. That hasn't happened since 1969, when Richard Nixon had not one but two vacancies to fill on his accession.

There is a strong element of luck about whether a President gets to have even one appointment never mind more. Jimmy Carter made no appointments, whereas his successor Ronald Reagan got to elevate William Rehnquist to Chief Justice and also appoint three other justices during his presidency, and as a result leave a huge legacy of moving the Court to the right.

There are no guarantees that a President's choices will turn out how they expected. Judges have a habit of evolving their views once they sit on the Court. John Kennedy's nominee, Byron White, turned out to be far more conservative than people expected. Conversely, President Eisenhower said "I made two mistakes and both of them are sitting on the Supreme Court." He was referring to Earl Warren and William Brennan who were to become the backbone of the great reforming liberal court of the 1960s.

Trump's choice of Gorsuch appears to be a very shrewd one. He is exceptionally conservative in the mould of Scalia, but is eminently qualified. He has been joyously received by the Republicans and leaves the Democrats with a significant problem in finding a way to oppose him and yet appear reasonable.

With a number of the liberal members of the Court ageing and in ill-health, it's possible that President Trump might get the opportunity to nominate at least two other Justices in the coming years. If he does, the balance of the Court could change for decades.

With everything else going in Washington, it's worth paying attention to the Court, it's where lasting and seismic change could take place.

Mark Malcomson CBE is Principal and CEO of City Lit, Europe's largest adult education college. Mark teaches American politics and starts a new course on the US Supreme Court on Thursday 8 June until Thursday 29 June 2017, book your place today.