People For the American Way

Edit Memo: The Disastrous Consequences if a Trump Nominee like Scalia joins the Supreme Court


Contact: Laura Epstein or Drew Courtney at People For the American Way

Email: [email protected]

Phone Number: 202-467-4999

To: Interested Parties
From: Elliot Mincberg, Senior Fellow, People For the American Way
Date: January 30, 2017
Re: The Disastrous Consequences if a Trump Nominee like Scalia joins the Supreme Court

The first week of Donald Trump’s presidency has already seen him try to fulfill all too many of his campaign promises, on subjects like building a wall between the U.S. and Mexico, anti-Muslim and anti-immigrant executive actions, and reconsideration of the use of torture.[i] On Tuesday evening, he is expected to make good on another promise: nominating a Supreme Court justice in the mold of Antonin Scalia. Indeed, he has claimed that all of the reported finalists for the nomination meet that description, as independent research has suggested.[ii]

Right now, the Court has often been closely divided 4-4 on key issues, and the dangers of adding another justice like Scalia have previously been discussed. But those dangers are even greater now that Trump has begun to actually implement and not just advertise his agenda.

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. They do not want justices who will rubber stamp all of Trump’s dangerous actions. But based on the votes of right-wing justices like Scalia, Americans will not get a Supreme Court that upholds those values if Trump’s forthcoming nominee is confirmed. Instead, a Supreme Court with even one such Trump nominee would protect the privileges of the powerful and the wealthy, not the rights of all the people, and likely uphold most or all of Trump’s actions. This conclusion becomes clear based on key areas in which a Trump Supreme Court would likely rule, in a number of which Trump himself has already taken action.

Immigration: In addition to beginning on his promised U.S.-Mexico wall, Trump has ordered actions that are already having harmful consequences, including temporarily preventing immigration from specified majority Muslim countries, deportation of even U.S. residents from those countries who seek to return to the U.S. after being abroad, ordering religious discrimination against Muslims and in favor of Christians when immigration resumes, and trying to cut off federal funding for cities that refuse to cooperate with Trump’s deportation efforts.[iii] Lawsuits have already been filed against some of these steps, several lower court judges have temporarily stopped the deportations from taking effect, and some arguments against Trump’s plans should appeal to conservative as well as progressive judges.[iv] But with a Trump-nominated justice added to the Supreme Court in the mold of Scalia, the Court is all too likely to uphold these and other radical immigration policies, particularly if supported by a Republican Congress. Justices like Scalia, Thomas, and Alito have consistently voted to uphold restrictive laws and presidential practices on immigration and on foreign nationals even when the Court majority strikes them down, and they have formed a 5-4 majority to uphold restrictive policies in a number of cases.[v] Adding another right-wing justice is likely to tip the balance in Trump’s favor.

Voting rights: Another of Trump’s first-week actions is ordering an investigation to try to prove his totally unsupported claim that millions of people voted illegally in November, thus purportedly explaining his loss in the popular vote. Few believe that evidence will be found to back his claim, but there is significant concern that the result may be proposed legislation that will further restrict voting, particularly among the low-income people and people of color. Even without new federal legislation, states have already begun to pass new restrictions after the Court’s 5-4 decision several years ago, in which Scalia cast a deciding vote, making such laws easier by overturning part of the Voting Rights Act.[vi] Lower courts have already enjoined or struck down such laws in North Carolina and elsewhere. But one more justice in the mold of Scalia would likely result in the approval of such restrictive laws. 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.[vii] A Trump Supreme Court would also likely approve state redistricting plans like those that have been approved by a 5-4 majority or narrowly struck down as discriminatory and make it harder for states to undertake nonpartisan redistricting.[viii]

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.[ix] Adding one more justice like Scalia 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.[x] And restoring the right-wing Supreme Court 5-4 majority by adding just one justice like Scalia would likely lead to more Court decisions severely limiting workers’ rights in discrimination and other cases.[xi]

Reproductive rights: Trump has specifically promised that any justice he nominates will be against abortion rights and Roe v. Wade. Adding one more justice in the mold of Scalia would restore the 5-4 majority that upheld Congress’ law banning so-called late-term abortions, and more such proposals are likely in the future at the federal or state levels.[xii] Depending on the number of Court vacancies that President Trump is able to fill, a Trump Supreme Court could very well overrule Roe. Even adding one more anti-choice justice is likely to produce significant efforts to turn the dissenting votes of Alito, Thomas, and Roberts in the recent Texas abortion case into a majority and approve severe restrictions on women’s access to abortion like those in Texas that were narrowly struck down by the votes of five justices this year. And there is no question that adding one more anti-choice justice would make it difficult or impossible for many women to obtain access to insurance covering birth control under the Affordable Care Act, assuming the ACA survives, by allowing employers who object to birth control to prevent their insurance plans from providing such coverage.[xiii]

Protection against government abuse: Just the first week of President Trump’s time in office has already seen more abuse by government officials, including reports that some are disobeying a recent court order against parts of Trump’s anti-Muslim and anti-immigrant executive actions.[xiv] Adding another justice like Scalia to the Supreme Court would make it harder to stop abuse by officials of the Trump administration and at the state and local level. It would restore the 5-4 majority including Scalia that upheld even egregious instances of abuse, such as in one case where the 5-4 majority reversed a $14 million verdict against state prosecutors who deliberately withheld a lab report that forced an innocent man to spend 18 years in prison.[xv] And a second Trump justice would likely lead the Supreme Court to 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.[xvi]

LGBTQ 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, adding one Trump justice like Scalia would likely eviscerate LGBTQ rights by approving practices and laws like in Mississippi that allow anyone with a religious objection, even state officials, to discriminate against LGBTQ individuals. Although a federal district court has struck down the Mississippi law, based on the votes of justices like Scalia, a Supreme Court with one more such right-wing justice would almost certainly approve that and similar discriminatory state laws and practices.[xvii]

Money and politics: Adding just one more justice like Scalia would restore the 5-4 majority that produced the troubling Citizens United and McCutcheon rulings, making it extremely hard to enact and sustain 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 also 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.[xviii]

Protecting the environment: Although President Trump and his EPA nominee themselves are likely to do significant damage to environmental protection efforts, a Trump Supreme Court would do even more, based on the votes of Scalia and Trump’s 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. Assuming Trump’s EPA does not itself withdraw them, a Supreme Court with just one Trump nominee like Scalia would likely strike down such rules.[xix] 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.[xx]

Marketplace and consumer fairness: President Trump has made clear that he will continue to hold direct financial interests in his corporations, and will generally favor big business. A Trump Supreme Court would further stack the deck against consumers and in favor of large corporations in the marketplace. Trump justices like Scalia will make it even harder to bring class actions, often the only way that consumers can effectively seek justice against big corporations. That issue is before the Supreme Court now and a new Trump-nominated justice could well tip the balance against consumers.[xxi] In addition, a Trump Supreme Court with two new justices 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.[xxii]

These are just some of the likely results of a Supreme Court to which a President Trump is able to nominate even one or two new justices like Scalia. And if President Trump’s first week is any indication, we are likely to see much more action by his administration that severely damages all our rights. With both houses of Congress under Republican control, the only part of our government that may be able to stop Trump’s extremism is the courts. For that third branch to function effectively, it is crucial that the Senate stop Trump from putting another justice or more like Scalia on the Supreme Court.

[i] See C.Savage et al, “Trump’s First Week,” New York Times (Jan. 27, 2017)

[ii] See J. Adler, “How Scalia-esque will Donald Trump’s Supreme Court Nominees Be?” Washington Post (Jan. 27, 2017)

[iii] See M. Shear et al,Trump Bans Refugees and Citizens of 7 Muslim Countries,” New York Times (Jan. 27, 2017); G Korte et al, “Trump Order Clamps Down on Immigrant Sanctuary Cities,” USA Today (Jan. 25, 2017).

[iv] See A.deVogue et al, “Judges Temporarily Block Part of Trump’s Immigration Order. CNN (Jan. 29. 2017); D.Root, “Trump’s Unconstitutional Attack on Sanctuary Cities,” (Jan. 29. 2017).

[v] See, e.g. Chamber of Commerce v.Whiting, 563 U.S. 582 (2011): Demore v. Kim, 538 U.S. 510 (2003); 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)

[vi] See Shelby County v. Holder, 133 S.Ct. 2312 (2013).

[vii] See L. Denniston, “North Carolina Limits on Voting Remain on Hold,” Constitution Daily (Aug. 31, 2016).

[viii] See People For the American Way, Judgment Day (Sept. 2015) (“Judgment Day”) at 13-14.

[ix] See A. Liptak, “Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4,” New York Times (March 29, 2016)

[x] See CSX Transportation v. McBride, 131 S.Ct.2630 (2011); US Airways v. McCutcheon, 133 S.Ct. 1523 (2013); Judgment Day at 24 n.132.

[xi] See Judgment Day at 22-23.

[xii] See Gonzales v. Carhart, 550 U.S. 124 (2007).

[xiii] 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)

[xiv] See A. Whiting, “Despite Court Order, US Officials at Dulles Wont Allow Lawyers at Dulles to See Detainees,” Washingtonian (Jan. 29, 2017).

[xv] See Connick v. Thompson, 131 S.Ct. 1350 (2011)

[xvi] See Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015); Judgment Day at 39-40.

[xvii] 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.

[xviii] See Judgment Day at 9-10, 35.

[xix] See A. Sayid, “Presidential Election Could Affect Air Cases at High Court,” Bloomberg News (July 29, 2016).

[xx] See Judgment Day at 25-28.

[xxi] See A. Howe, “Court Adds 16 new cases to its merits docket,” SCOTUSBLOG (Jan. 13, 2017).

[xxii] See Judgment Day at 35.