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Trump's surprise win sparks panic among progressive court watchers

Thursday, November 10, 2016

By Ryan Lovelace

President-elect Donald Trump's victory in Tuesday's election has progressive court watchers fearful that the Supreme Court may turn sharply to the right.

While it's unclear precisely who Trump would appoint to fill the vacancy created by Justice Antonin Scalia's death, liberal groups have already begun to panic. Elizabeth Wydra, president of the progressive Constitutional Accountability Center think tank and law firm, told reporters we will live in a "new and different world" if the president-elect gains the opportunity to stock the court with new justices.

"I think we can worry from a progressive standpoint that crucial gains won over the last few decades in areas including abortion rights, LGBTQ equality, racial justice and anti-discrimination laws could be undermined and that is a real threat," Wydra said.

Wydra added that she hopes the individuals included on Trump's lists of potential Supreme Court picks would be faithful to the Constitution if selected because of the progressive group's concern of "constitutional threats" spawned by a Trump presidency.

"The most significant short-term impact of the election will come in cases that involve actions taken by agencies under the Obama administration," added Brianne Gorod, the Constitutional Accountability Center's chief counsel.

Gorod pointed to the Court's decision to hear a case on whether the Obama administration can order public schools to permit transgender students to use bathrooms that correspond with their chosen gender identity.

Since a lower court's ruling was based on an opinion letter from the Obama Education Department's Office for Civil Rights, Gorod argued, the Trump administration could withdraw the opinion letter and change the case before the court.

"If the Trump administration were to withdraw that opinion letter, that of course fundamentally changes that case," Gorod said. "The courts could certainly still conclude that the boy should be able to use the boys restroom based on Title IX, a law previously passed by Congress. But the Supreme Court may well decide that the lower courts decide that particular question in the first instance."

Alongside the bathroom battles, Gorod identified the Environmental Protection Agency and Consumer Financial Protection Bureau as two other agencies that have cases that could change as a result of the Trump administration's actions.

Exactly how progressives and their representation in Congress intend to fight the Trump administration for control of the judiciary is not completely known, but one major judicial advocacy group has already urged a call to arms. The Alliance for Justice implored its supporters to "fight a conservative takeover of the courts" following Tuesday's Republican wave election.

"At this critical moment in history for our federal courts, it is essential that we fight with all the resources at our disposal against a takeover of our courts by the anti-woman, anti-gay, anti-worker, anti-minority forces of the far Right," said Nan Aron, Alliance for Justice president, in a statement.

"Rarely has there been a time when the fairness and impartiality of our courts have been more at stake. We and our allies at Alliance for Justice will oppose, with every ounce of our strength, an ultra-conservative takeover of our nation's courts."

Senate Democrats, meanwhile, look motivated to thwart Trump's potential Supreme Court nominee as retribution for Republicans' blocking the confirmation of Merrick Garland, President Obama's nominee to replace Scalia.

Depending on which approach Democrats take to impeding Trump's potential nominee, Republican leadership may look to change Senate rules to allow for the Trump nominee's confirmation by a simple majority vote, the Washington Examiner's Susan Crabtree previously reported.

The 2018 midterm Senate election fights also appear poised to play a large role in Democrats' willingness to fight Trump tooth-and-nail on the Supreme Court vacancy.

Five Democrats look prepared to run for re-election in 2018 in states Trump won decisively on Tuesday, including Sens. Joe Donnelly of Indiana, Claire McCaskill of Missouri, Jon Tester of Montana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia.

Whether far-left Democrats likely spoiling for a fight over the court — namely Massachusetts Sen. Elizabeth Warren and Vermont Sen. Bernie Sanders — have any hope of turning their fear into inspiration for others may rest on these five members' shoulders. Whether Senate Democrats heed progressive court-watchers' warnings could determine exactly who fills Scalia's vacancy.