To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: September 9, 2016
Re: The Disastrous Consequences of a Trump Supreme Court
Even as some Republicans criticize statements by their presidential candidate Donald Trump on Gold Star father Khizr Khan and other matters, Senators John McCain, Marco Rubio, Kelly Ayotte and many other Republicans have made clear that they support Trump because of the justices he would nominate to the Supreme Court. In fact, with one seat on the Court already vacant, and as many as three additional vacancies considered likely in the next President’s first term, a President Trump could well determine the composition of the Court for decades. So what would a Trump Supreme Court actually do, and what would it mean for Americans’ rights and liberties?
Most Americans want a Supreme Court that will protect the principles of liberty, equality, and justice for all. They want justices who believe that the Constitution protects everyone, not just the rich and powerful. But based on the votes of right-wing justices like Thomas, Alito, and the late Justice Scalia, who Trump has vowed to emulate in his nominations, as well as the records of those specific judges that Trump has listed as possible Court nominees, Americans will not get a Supreme Court that upholds those values if Trump becomes president. Instead, a Trump Supreme Court would protect the privileges of the powerful and the wealthy, not the rights of all the people. This conclusion becomes clear based on ten key areas in which a Trump Supreme Court would likely rule: immigration, workers’ rights, gun violence, reproductive rights, LGBTQ rights, money and politics, protecting the environment, marketplace and consumer fairness, civil and voting rights, and protection against government abuse.
Immigration: A Trump Supreme Court is likely to uphold a President Trump’s radical immigration policies, particularly if supported by a Republican Congress. Justices like Thomas, Scalia, and Alito have consistently voted to uphold restrictive laws and presidential practices on immigration and on foreign citizens even when the Court majority strikes them down.1 Adding more right-wing justices would tip the balance decisively in Trump’s favor. So a Trump Supreme Court would likely approve orders by a President Trump mandating mass deportations, imposing ideological litmus tests on immigrants, banning immigration by all Muslims or people from selected countries, or building a wall between the U.S. and Mexico.
Workers’ rights: The current Supreme Court split 4-4 in a case where anti-labor advocates were pushing the Court to overrule an important precedent and eliminate “fair share” fees from non-union members that are crucial for unions to operate.2 A Trump Supreme Court would break the tie and deal a devastating blow to workers’ ability to organize and operate unions. A Trump Court could also make things even worse than the Roberts Court has for workers protected by federal law. For example, a Trump Supreme Court would likely have limited workers’ pension rights and ruled that railroads are not responsible for workers’ injuries in recent cases where the Court protected workers in narrow 5-4 decisions.3 One of the judges on Trump’s Supreme Court list has even tried to rule that a woman who reports sexual harassment on the job cannot take legal action if her employer retaliates and fires her.4
Gun violence: As Trump himself touts his allegiance to the gun lobby on the campaign trail, there is no doubt that a Trump Supreme Court would make it even harder than under the current Supreme Court to pass common-sense gun safety laws. Conservatives like Justices Scalia and Thomas came within one vote of effectively repealing a key part of a federal law that prohibits “straw” purchases of guns that can be used to evade background check requirements. A Trump Supreme Court would likely limit or strike down this and similar laws.5 In the aftermath of horrible gun violence, a number of state and local governments have enacted gun safety laws, like Connecticut’s ban on assault weapons. Although the Supreme Court declined to consider a challenge to that law, it is unfortunately all too likely that a Trump Supreme Court would review and strike down such provisions. In fact, a comprehensive California gun safety law was recently upheld in federal appellate court and could be an early victim of a Trump Supreme Court.6
Reproductive rights: Trump has made clear his opposition to Roe v. Wade, and depending on the number of Court vacancies a President Trump is able to fill, a Trump Supreme Court could very well overrule it. One of Trump’s potential Court nominees has called Roe the “worst abomination of constitutional law in our history.”7 Even if Roe is not overruled, it is extremely likely that a Trump Supreme Court would turn the dissenting votes of Alito, Thomas, and Roberts in the recent Texas abortion case into a majority and would approve severe restrictions on women’s access to abortion like those in Texas that were narrowly stuck down by the votes of five justices this year. A Trump Supreme Court would also likely make it extremely difficult for many women to obtain access to insurance covering birth control under the ACA by allowing employers who object to birth control to prevent their insurance plans from providing such coverage.8
LGBT rights: With the addition of just two Trump justices, a Trump Supreme Court would have the votes to overrule the Court’s landmark ruling on equal marriage rights in the 5-4 Obergefell decision. Even if this does not happen, a Trump Supreme Court would likely eviscerate LGBT rights by approving practices and laws like in Mississippi that allow anyone with a religious objection, even state officials, to discriminate against LGBT individuals. Although a federal district court has struck down the Mississippi law, based on the votes of justices like Alito, Thomas, and Scalia, a Trump Supreme Court would almost certainly approve that and similar discriminatory state laws and practices.9
Money and politics: A Trump Supreme Court would further extend the troubling Citizens United and McCutcheon rulings, making it even harder to enact common-sense rules limiting corporate and wealthy individuals’ campaign spending and influence. Based on dissenting votes of Trump model justices like Thomas, Scalia, and Alito, a Trump Supreme Court would likely strike down not just federal money in politics reforms, but also state efforts to regulate campaign spending in elections for state judges. A Trump Supreme Court would likely rule that states cannot stop judges from directly soliciting campaign contributions, and that state judges can rule in cases involving people who spend large amounts helping them get elected, contrary to recent 5-4 Court rulings, thus seriously undermining justice in state courts.10
Protecting the environment: Although a President Trump himself is likely to do significant damage to environmental protection efforts, a Trump Supreme Court would do even more, based on the votes of Thomas, Scalia, and other models for Trump Supreme Court appointments. Several important cases concerning the validity of federal rules protecting against mercury and other toxic air pollution and against harmful power plant emissions are pending right now in federal appellate court. A Trump Supreme Court would likely strike down such rules.11 A Trump Supreme Court is also likely to remove wetlands almost completely from protection under the Clean Water Act and to make it easier to challenge environmental protection efforts at the federal, state, and local level.12
Marketplace and consumer fairness: A Trump Supreme Court would further stack the deck against consumers and in favor of large corporations in the marketplace. Trump justices would make it even harder to bring class actions, often the only way that consumers can effectively seek justice against big corporations. In addition, a Trump Supreme Court would almost certainly reverse a recent 5-4 decision or find some other way to rule that the Affordable Care Act is unconstitutional, harming millions of Americans.13 And a Trump Supreme Court would likely undermine or reverse narrow rulings that have allowed consumer suits against deceptive cigarette labelling in state courts and state attorneys general actions against big banks.14
Civil and voting rights: A Trump Supreme Court would almost certainly approve restrictive state voter ID and other voting laws that lower courts have found to improperly limit minority voting rights in North Carolina and elsewhere, based on voting patterns by justices like Alito, Thomas, and Scalia.15 In fact, one more right-wing justice on the Court would have allowed the discriminatory North Carolina law to take effect in this November’s elections.16 A Trump Supreme Court would also likely approve state redistricting plans like those that have been narrowly struck down as discriminatory and make it harder for states to undertake nonpartisan redistricting.17 A Trump Supreme Court could well reverse a recent 5-4 Court ruling and make it impossible to bring up housing discrimination lawsuits based on the discriminatory effects of landlord and other practices.18
Protection against government abuse: A Trump Supreme Court would make it harder to stop abuse by officials of a Trump Administration and/or at the state and local level. Based on the votes of justices like Thomas, Alito, and Scalia, a Trump Supreme Court would likely approve laws like the one recently struck down in a 5-4 ruling that allowed police to demand to see private information in hotel registers without a warrant.19 A Trump Supreme Court would also likely allow additional physical abuse by law enforcement, such as in a recent case where the Court ruled 5-4 against officers who had abused someone under arrest through tasering and slamming his head against a concrete bunk.20
These examples and more are likely products of a Supreme Court to which a President Trump is able to nominate even one or two new justices. With three or more nominations, as is considered likely in the next President’s first term, the consequences to all Americans would be disastrous. This may well be what Senators like McCain, Rubio, and Ayotte want. But all Americans must keep this nightmare scenario in mind as they head to the polls in November.
1 See, e.g. Arizona v. U.S., 132 S.Ct. 2492 (2012); Boumediene v. Bush, 553 U.S. 723 (2008). See J. Hagen, “Constitution Allows Muslim Immigration Ban,” Conservative Daily Review (Aug. 15, 2016)
2 See “The Friedrichs Case: Why the Supreme Court pick means so much,” The Hill (Aug. 15, 2016).
4 See M. Blades, “If Trump Could Appoint nine new justices to the Supreme Court, these would be they,” Daily Kos (May 19, 2016) (Judge Steve Colloton)
5 See Abramski v. U.S., 134 S.Ct.2259 (2014); Judgment Day at 32-3.
6 See L.Denniston, “California gun case could be headed to Supreme Court,” Constitution Daily (August 17, 2016).
7 See S. Stolberg, “A Different Timpanist,” New York Times (June 10, 2005)(Judge William Pryor)
8 See G.Stohr, “Obamacare Contraceptive Case Produces Supreme Court Compromise,” Bloomberg News (May 16, 2016); S.Ferris, “Trump: My Supreme Court pick would have upheld Texas abortion law,” The Hill (June 30, 2016)
9 See “Trump Attacks Supreme Court Decision on Marriage Equality,” Think Progress (Jan. 31, 2016); N. Tucker, “U.S. district judge strikes down Mississippi’s ‘religious freedom’ law,” Washington Post (July 1, 2016): Judgment Day at 16-17.
11 See A. Sayid, “Presidential Election Could Affect Air Cases at High Court,” Bloomberg News (July 29, 2016).
13 See NFIB v. Sebelius, 132 S.Ct. 2566 (2012); Judgment Day at 35.
15 See R. Barnes & A. Marimow, “Appeals Court strikes down North Carolina’s voter id law,” Washington Post (July 29, 2016); Judgment Day at 11-14.
16 See L. Denniston, “North Carolina Limits on Voting Remain on Hold,” Constitution Daily (Aug. 31, 2016).
18 See Texas Dept. of Housing and Comm. Affairs v. Inclusive Comm. Project, 135 S.Ct. 2507 (2015); Judgment Day at 14.
19 See City of Los Angeles v. Patel, 135 S.Ct. 2443 (2015); Judgment Day at 40.
20 See Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015); Judgment Day at 39-40.