A Continued Conservative Majority on the Supreme Court?

By Gabriel Maliha

Gabriel Maliha is a senior at the University of Pennsylvania studying criminology.

As soon as November 8th ushered in a new president-elect, speculations began as to who Donald Trump would appoint to the current vacancy on the Supreme Court left by the passing of Justice Antonin Scalia in February 2016. The judicial position remains unfilled because the United States Senate had not acted on President Obama’s nomination of Merrick Garland [1]. As a candidate, Trump had taken the unusual step of publicizing a list of about twenty individuals including judges that he felt might be suitable for the position. Unsurprisingly, they all appear to be ideologically conservative.
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Filling the current vacancy with a conservative justice would maintain the right-leaning majority on the court that has existed since 1971. However, the opportunity to appoint two, or even three, more justices over the next four to eight years of a Trump administration could be a true game changer. Due to age, many Justices may be reaching the end of their tenure on the Court, as Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy is 80 and Justice Stephen Breyer is 78. The first two are reliably liberal and Mr. Kennedy is the swing vote, so their replacement could substantially hurt liberals.

The eight member court that has existed since February, split ideologically down the middle, has skirted many issues by returning them to lower courts for further adjudication as it did with the case surrounding the Clean Power Plan and Deferred Action for Parents of Americans (DAPA) program [2] [3]. In other cases, such as that of the California teachers union requiring mandatory fees from non-union members, an equally divided court affirmed lower court ruling in non-precedential decisions [4] [5]. This is in addition to important rulings by lower courts that are all but certain to make their way to the high court. This includes the recent decision by the circuit court for the District of Columbia to consider the Consumer Financial Protection Bureau an agency of the executive branch with its director serving at the pleasure and the direction of the President [6].

Some issues such as DAPA may become moot for the court if the new president reverses the executive order establishing the program as he is widely expected to do judging by his campaign pledges. Regulations such as the Clean Power Plan may be rendered moot, or their chances of being upheld greatly weakened if the new administration notifies the court that it plans further revisions. In the case of Clean Power Plan, the Supreme Court has already ordered the EPA to halt enforcement in an unprecedented decision in February 2016. Other options concerning regulations that have not gone into effect would be to delay the date they take effect while the lengthy revision process unfolds [7]. For lower court rulings that suit the new administration, such as abolishing the independent agency status of the CFPB, the upcoming administration will simply forgo further appeals.

The temptation to enact policy by executive order and aggressive rulemaking is understandable, though not generally the best way to proceed in the long term. Presidents in both parties have used those levers of power to carry out their favored policies. This is particularly true when the opposition party controls Congress. Executive orders are in principle a framework set by the president for the benefit of the federal bureaucracy to carry out specific directives within the inherent Constitutional executive powers of the president. Regulations are promulgated by agencies of government to execute statutes as written by Congress and consistent with its legislative intent [7].

Executive orders are the least transparent and fastest way to promulgate policy, as they are not subject to the usual statutory public feedback from stakeholders. Regulations do require a public commentary period, and they generally take significantly longer to finalize. However, both are inherently unilateral processes of the executive branch. In the case of regulations, the Congressional Review Act provides a check, though a very difficult one to exercise because it is subject to the veto power of the president. Of course, both executive orders and regulations are subject to court review [8].

But beyond the legal aspects, both executive orders and aggressive regulating are the least stable ways of promulgating policy. Executive orders may be reversed unilaterally by a subsequent president, while regulations may be revised by agencies under presidential direction. Legislation is the most predictable and transparent way to enact policy. Hearings allow stakeholders to express their views and inform legislators, congressional debates build a record of legislative intent, the text of the statute may determine the parameters that are subject to court review, and the executive branch has a chance to shape the legislation that the president is willing to sign.

[1] Savage, David. “Trump’s victory ensures a conservative majority on the supreme court.” LA Times 9 November 2016.
[2] “A new national clean power plan.” Environmental Defense Fund.. Retrieved from http://www.edf.org/climate/a-new-federal-clean-power-plan.
[3] Malloy, Allie. “Obama unveils major climate change proposal.” CNN. Retrieved from http://www.cnn.com/2015/08/02/politics/obama-climate-change-plan/
[4] Bravin, Jess. “Republican victories likely to alter supreme court’s docket.” The Wall Street Journal 11 November 2016.
[5] Savage, David. “Trump’s victory ensures a conservative majority on the supreme court.” LA Times 9 November 2016.
[6] PHH Corporation, Et AL. v Consumer Financial Protection Bureau
[7] Shapiro, Stuart, “What new presidents can (and cannot) do about regulation.” The Hill 23 December 2015.
[8] Shapiro, Stuart. “The congressional review act rarely and (almost always) unsuccessful.” The Hill 17 April 2015.

Photo Credit: Flickr User Mark Fischer

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