Widespread shock and outright hysteria quickly followed the news that President Trump would within two years get a second U.S. Supreme Court pick. But legal experts say that reaction may actually be justified, as adding another conservative to the court could signal a once-in-a-generation shift in the nation’s highest court of law.
“I was extraordinarily depressed when Justice Kennedy announced his retirement. I was a little bit comforted knowing I was not overreacting in my deep malaise,” said Stacy Hawkins, a professor at Rutgers Law School in Camden. “It is going to represent a fundamental shift in the court. This is a monumental appointment. The court has not been this conservative in generations. It is going to represent a really significant ideological and political shift, and it’s going to have, I think, a seismic impact on the rule of law.”
It’s too early to tell whether doomsday scenarios prophesied by some Democrats and liberals of across-the-board rollback of reproductive rights, LGBT rights, affirmative action and other legal issues will come true. While Supreme Court justices tend to respect precedents set by previous courts, such as 1973’s Roe v. Wade decision, the new court could seriously curtail some rights without fully overturning them.
“There are so many ways that Roe could be limited and restricted that it becomes an essential nullity,” Hawkins said, adding, “There’s still lots of undecided legal questions around LGBTQ rights. I think we would certainly see an end to any further progression of the expansion of those rights.”
Another change to the court will be the loss of its swing vote. Retiring justice Anthony Kennedy was a Republican but often ruled in favor of liberal causes, most notably authoring the decision that legalized gay marriage in 2015. Hawkins said one “silver lining” in Kennedy’s departure is that Chief Justice John Roberts, a Republican who famously broke ranks with his party to cast the deciding vote upholding Obamacare in 2013, may shift toward filling that role.
“As chief justice, he plays a special role in trying to shepherd the court’s reputation and legacy through a fraught political time,” she said. “He might emerge as the one who takes on the mantle of the centrist justice, and that would be a welcome, welcome change.”
Supreme Court pick: How much does loyalty matter?
Ultimately, Hawkins said she believes Trump’s Supreme Court nomination choice probably came down to the candidate’s personal loyalty to him.
“Trump values loyalty above all else,” she said. “He's going to want a loyalist that is going to rule favorably when his administration is on the docket. Of course, his administration has been on the docket quite a bit and that’s going to continue. That’s the most important thing, someone who is not only going to be loyal to him personally but to the Republican Party.”