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November 23, 2016

"Four predictions about President Trump’s Supreme Court" ... that seem somewhat iffy

The quoted portion of this post title is the headline of this new Washington Post commentary authored by poly-sci professor Kenneth Moffett.  But as my addition to the title suggests, I am not too sure about all the predictions. Here are some highlights:

One of President-elect Donald Trump’s most important decisions will be choosing a Supreme Court nominee to replace the late Justice Antonin Scalia.  And while Trump has not clearly signaled who he will pick, here are four predictions about the next Supreme Court:

1. Trump will appoint a conservative. What kind of conservative isn’t yet clear. ...

Eight potential Trump appointees have more liberal scores than Scalia, while four are more conservative. Regardless of which side they fall on, eight are clustered pretty close to Scalia, indicating that they would likely be justices in his mold....

The chart suggests that it is virtually certain that Trump will nominate a conservative, most likely one whose preferences are closely aligned with Scalia. Of course, if Trump deviates from his announced list of 21 — not an impossibility given his penchant for surprise — then that may be less certain.

2. The court will get back to hearing its normal caseload.

During the 2015 term, the court heard 69 cases, but only has 48 on the docket in 2016....  [When] a new justice will be confirmed, bringing the court back to full strength. When that happens, the court’s docket will return over the next term or two to the average of where it had been in the previous five terms, around 69 cases.

3. The court is not going to undo affirmative action programs — at least not immediately....

4. The court could move to weaken labor unions and expand gun rights. 

For complicated reasons, I am not sure I would make book on most of these predictions.  But on a holiday eve, I will just say I would love to hear others' SCOTUS predictions (especially in the sentencing space).

November 23, 2016 at 01:14 PM | Permalink


I do think #2 is fairly likely, #3 seems unlikely at this point (even if #1 turns out to be accurate). And I would put both halves of #4 somewhere in the middle.

Posted by: Soronel Haetir | Nov 23, 2016 1:52:20 PM

The list seems accurate.

#1 is a bit of a wild card, I'd guess, but do think the USSC is being careful because of fear of splits. The caseload is smaller than usual and there should be backlog. Kennedy wrote Fisher II, so there's five votes for it now. So, #3 seems correct.

#4 has reasonable odds, especially since the person will be vetted with them particularly in mind. Both, especially with five votes, have somewhat limited opportunities to occur. There will be more cases involving labor and Kennedy and the liberals at least appear supportive of a range of gun regulations.

The seat is something of a wild card given Scalia's views on a range of issues. It's probably easier to predict trends in the lower courts as a whole.

Posted by: Joe | Nov 23, 2016 1:59:39 PM

Trump should just announce that he wants to appoint someone who will get confirmed 100-0, and that he won't nominate anybody until the Senate gives him a nominee that every single one of them is willing to agree on.

Posted by: The Death Penalty Sucks. | Nov 23, 2016 10:32:35 PM

Merrick Garland should do the trick.

The Dems will support him since Obama nominated him and Republicans will since "the people chose" and the person they chose picked him (if one is inclined to care about the popular vote, it is kinda a mandate on Obama, who picked him -- works both ways!). Plus, many Republicans beforehand said he was a great choice. Of course, that is when they didn't figure he would be chosen, but I'll take them at face value for chuckles.

Posted by: Joe | Nov 24, 2016 12:50:56 AM

Maybe, if Breyer, Ginsburg and Sotomayor are replaced with three from Trump's list, we can think about Merrick Garland.


A real hate crime . . . . .

Posted by: federalist | Nov 24, 2016 12:01:14 PM

The Democrats will be in revenge mode, and nobody who is right of Kennedy or Roberts will even be heard by the senate. I predict a social libertarian. Roe v Wade is set in titanium-reinforced concrete, as well as gay marriage.

Since Trump is a nationalist/populist, and not a conservative, that means that the Constitution is on the way out the door within the next 2 or 3 decades, and we will be a fully progressive nation by 2045 to 2050.

Posted by: Eric Knight | Nov 24, 2016 12:25:52 PM

The senator from Hawaii already met with Trump. Other Democrats will be in "we have to govern" mode. Maybe, the first candidate will have problems, but I think the person will be confirmed. Scalia is being replaced, not RBG. That will make it go down easier.

Trump is not a conservative but with a Republican Congress and as a member of a party that leans conservative now in various ways, expect a good number of conservatives. I welcome social libertarians, sort of a Kennedy with a bit more gravitas. We shall see.

Posted by: Joe | Nov 24, 2016 12:42:24 PM


I do not expect the filibuster of SCOTUS justices to survive. The democrats may have only changed it for lower courts before but that was because they didn't have anything to gain by changing it at the time (as there wasn't a SCOTUS nomination being held up). That ship has sailed.

I do agree with Joe re. Scalia being replaced rather than RBG. I suspect that is a lot of why the Garland nomination went nowhere (that is, if it had been RBG who had died when Scalia did the Garland nomination might have gone through as it would not be seen as changing the court balance to the detriment of the senate majority).

Posted by: Soronel Haetir | Nov 24, 2016 3:16:03 PM

The filibuster isn't going anywhere. There are already at least five Republicans on record as saying it will stay, including Hatch. That isn't to say that the Dems will filibuster, it will depend on who is nominated and who is nominated will depend on whether Trump is spoiling for a fight. I don't think Mr. The Art of the Deal is going to be looking for a fight so my guess is that he will nominate someone the Dems can at least tolerate.

The rest all seems like reasonable hypothesis to me.

Posted by: Daniel | Nov 25, 2016 2:15:18 PM

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