How a Trump Presidency Impacts the Supreme Court

When it comes to the Supreme Court, Republican strategy seems to have paid off.

By refusing to act on President Obama’s nomination of Judge Merrick Garland to the court, by insisting the choice belong to the next president, they have assured that the decision will now fall to President-elect Donald Trump.

The nomination of a new associate justice is needed to fill the vacancy left after the death of Justice Antonin Scalia in February.

“The next justice will have a major impact on the Supreme Court for decades to come,” says Bruce Klaw, an assistant professor in the Department of Business Ethics and Legal Studies at the University of Denver. “Currently, we have a 4-4 split largely along ideological lines that, in certain politically charged cases, appears to have paralyzed the court.”

Before joining the Daniels College of Business, Klaw worked as an attorney in a private practice and worked on cases before the International Court of Justice, the U.S. Supreme Court, the Second Circuit Court of Appeals, and various state, federal and foreign regulatory bodies.

“In the absence of a ninth Justice, we have already seen 4-4 ties on important issues, which do not result in binding Supreme Court precedent and merely affirm the Court of Appeals decision,” Klaw says.

Klaw points to United States v. Texas as a recent case in which a 4-4 tie left a lower court ruling in place. The case concerned the legality of the Obama administration’s plan to defer deportation action for parents of Americans and permit as many as 5 million unauthorized immigrants to work lawfully in the United States. The 4-4 split resulted in the affirmation of the Court of Appeals decision to block the administration’s deferred action plan.

Klaw says there are several upcoming Supreme Court cases where having a ninth justice may be necessary to break a 4-4 split. Gloucester County School Board v. G.G. is a case in Virginia focused on transgender rights and the use of bathrooms in schools. Packingham v. North Carolina is a case where justices will consider the legality of a state law that makes it a felony for registered sex offenders to access a variety of websites. Both cases will be argued in February of next year.

The make-up of the Supreme Court could truly shift if there are additional vacancies while Trump is president. Justice Ruth Bader Ginsburg is 83, and Justice Stephen Breyer is 78. Both are liberal members of the Court. Justice Anthony Kennedy is 80 years old and more in the ideological center of the court.