The U.S. Supreme Court in Washington is currently divided into factions of four Republican judges and four Democratic judges.YURI GRIPAS/Reuters
U.S. president-elect Donald Trump has the opportunity to put a deep imprint on the Supreme Court and create a legacy on a wide range of policies, from gun controls and abortion rights to capital punishment and transgender rights.
The court has one immediate vacancy. Antonin Scalia, a deeply conservative jurist, died in February, and the Republicans blocked President Barack Obama's attempt to name a successor. The court also has three judges who are 78 or older and could decide to retire soon. Two of those judges, Stephen Breyer, age 78, and Ruth Bader Ginsburg, 83, are Democrat appointees, and the third is the most moderate of the Republican appointees, Anthony Kennedy, 80, who has often been a swing vote in 5-4 rulings.
The president-elect will shape the institution whose role, in part, is to be a check on his exercise of power.
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"Clearly in the U.S. – and you can tell from this campaign – they know that if you appoint a right-wing judge, he's going to agree with conservative legislation," John Major, a Supreme Court of Canada judge from 1992 to 2005, said in an interview.
Mr. Trump's supporters expect the court he reshapes to begin tearing down environmental protections and labour standards put in place by regulatory bodies under Mr. Obama.
"I would love personally to see a re-examination of the growth of the regulatory state and the phenomenon of the Environmental Protection Agency … making laws that affect millions of Americans," Harmeet Dhillon, a San Francisco lawyer and Republican national committeewoman, said in an interview.
While she does not expect dramatic changes to women's right to an abortion established in Roe v. Wade (1973), limits such as those affecting late-term abortions, or the right to information about the procedure, might meet the court's approval, she said. "I would expect to see a continued tinkering with the jurisprudence at that level. But I wouldn't expect to see Roe v. Wade overturned any time soon."
"I would be very surprised if that's what he wanted to burn political capital on," University of Pennsylvania law professor Stephanos Bibas said in an interview about the possibility of overturning Roe v. Wade. But the Supreme Court has chipped away at capital punishment, and that will end, he said. No new criminal rights for defendants are likely, nor will established protections such as the right to remain silent be tossed out. Transgender rights are unlikely to be enhanced, he said. And Mr. Trump said during the campaign that support for gun-owners' rights would be his litmus test for new Supreme Court judges.
The court is divided in a way Canada's Supreme Court is not: Currently, two factions of four judges each, Democratic and Republican, are split on hot-button social issues. "You can pretty well guess how they're going to come down on almost any legislation that's challenged," Mr. Major said. "That's not true in Canada."
So the next appointment will return the court to the 5-4 balance with the conservatives usually holding sway. And because the court has no mandatory retirement age – Canada's is 75 – the new president will appoint judges who could serve, and extend his influence, for decades.
To some observers, it is a disaster that Mr. Trump will have the power to reshape the court.
"It's a terrible blow," Burt Neuborne, the Norman Dorsen Professor of Civil Liberties at New York University, said in an interview. "I don't think it makes the Supreme Court his puppet, but we were within a whisker of having a progressive Supreme Court, and now we're going to have a continuation of a regressive Supreme Court."
But to Republicans and to the Federalist Society, a conservative legal movement whose intellectual parent was Justice Scalia, the election of Mr. Trump is a chance to end the Supreme Court's penchant, as they see it, for making up law as it goes along.
"Our guiding principles are jurisprudence strictly in line with the Constitution that doesn't engage in making up new law out of the cloth of the Constitution, and lets legislators do the legislating," said Ms. Dhillon, a long-time Federalist Society member. "I hope he will honour his promise to appoint constitutionalists and traditionalists to the Supreme Court, in the image of Antonin Scalia."
It could be nearly a year before the first Trump appointee takes a spot on the court. First comes a 90- to 120-day nomination period. And any attempt to rush the process would tie up the Senate judiciary committee as Mr. Trump tries to push other Justice Department appointments through, according to Alan Morrison, who teaches at George Washington law school in Washington. He expects the new judge will not join the court until next October.
And what kind of judge will Mr. Trump choose? He has put out lists of candidates, and legal observers such as Prof. Bibas said they ranged from excellent and highly qualified to "fire-breathers." Partly, the choice will depend on who becomes his attorney-general – former New York mayor Rudy Giuliani and New Jersey Governor Chris Christie are possibilities – and whether he replaces senior Justice Department staff, Prof. Bibas said. And when a "crony nominee" is chosen – as when George W. Bush picked Harriet Miers in 2006 – the American Bar Association and Republicans exerted so much pressure that the president withdrew the nomination.
Sean Fine