Donald Trump's surprise victory in Tuesday's presidential election has the potential to change the direction of the Supreme Court for far more than four years.
Trump's victory means he is poised to nominate the next justice on the Court that could be confirmed by a Republican-controlled Senate in the new Congress. Conservative court-watchers appeared jubilant after Trump's victory.
"Given the significance of the Court to Trump's voters, I'm confident that he will stand by his campaign promise to appoint someone from his excellent list of constitutionalist judges," wrote Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, on Wednesday. "While that still would leave the Supreme Court in a 4-4-1 balance, with Justice [Anthony] Kennedy as a swing vote, Trump is likely to have the opportunity to appoint additional justices, who can ensure that the Constitution is interpreted according to its text and original meaning and isn't used as a vehicle for political policy goals."
Senate Majority Leader Mitch McConnell struck an optimistic tone at a Wednesday press conference on Capitol Hill and said he was pleased that Trump had sought the Senate's advice on the Court vacancy in the run-up to the election. Now that Trump has won, McConnell said he believed the president-elect would be open to hear the advice that McConnell is eager to give him about the Supreme Court vacancy.
Before either Trump or McConnell take any action to fill the void created by Antonin Scalia's death, however, the election's results could have an effect on other issues before the Court. Josh Blackman, a signatory of the "Originalists Against Trump" group that opposed Trump from the right, wrote that the Supreme Court's docket could continue to shrink under Trump.
On the issue of religious liberty, Blackman argued the Trinity Lutheran Church v. Pauley religious liberty case could come off the Court's docket. The Trinity Lutheran case dealt with the constitutionality of the state's denial of the church's request for funding on the basis of a provision in the Missouri Constitution that prohibits public funds from directly or indirectly aiding any church, sect, or denomination of religion. Blackman noted that Republican Josh Hawley won the Missouri attorney general race on Tuesday, and that meant he would "probably make that case go away."
Similarly, Trump's victory could spell good news for the Little Sisters of the Poor in their battle against an Obamacare mandate. Blackman argued that Trump would likely exempt the Little Sisters of the Poor from the mandate, and a case of interest to the Little Sisters, Zubik v. Burwell, may also be removed from the docket.
Tuesday's election also figures to have large implications for Court's actions in regards to issues of life. Trump has pledged to appoint pro-life judges who would "automatically" reverse the Supreme Court's decision in Roe v. Wade decision on abortion rights. Trump also insisted during an October presidential debate that the issue would ultimately be resolved by individual states.
Progressives will fret the Court's actions on religious liberty and life, but their biggest hope under a leftward-leaning Court appeared to be undoing the Citizens United decision that removed barriers to political spending. Trump's deputy presidential campaign manager, David Bossie, is the former president of Citizens United, and it appears unlikely that Trump would have any interest in challenging the Court's ruling.
Trump's victory may also cause sitting justices to rethink their decision about when to retire from the bench. Speculation has swirled about whether Justice Clarence Thomas, who just celebrated his 25th anniversary on the Court, would consider retirement following the death of his friend and colleague, Justice Scalia. In an October speech at the Heritage Foundation, Thomas indicated he thought Washington, D.C., was a broken city and said American institutions were being undermined and destroyed. The conservative justice may be more sympathetic to the Republican president-elect than Obama.
And Thomas might not be alone in thinking about how his time on the bench could come to an end. At the end of president-elect Trump's four years, three justices — including Thomas — will be older than the life expectancy of someone living in the United States. Thomas and Kennedy would both be older than age 82, while Justice Ruth Bader Ginsburg would be 87.
Trump has said he will nominate judges in the mold of Scalia.