WASHINGTON (Legal Newsline) – President-elect Donald Trump’s
Nov. 8 victory has brought the opportunity for him to fill a
vacancy on the Supreme Court that will undoubtedly have a long-lasting effect.
Following the death of prominent conservative Supreme
Court Justice Anthony Scalia in mid-February 2016, the Obama Administration
moved to fill the empty chair with its pick of Merrick Garland, a chief
justice on the U.S. Court of Appeals in the District of Columbia.
The idea was proposed during a contentious
election year and the Republican-controlled Senate used its constitutional
right to delay hearings on the nomination.
In May and September of this year, Trump released 21 names that he has said he would defer to in selecting justices for the Supreme Court.
Trump rode to victory on the premise that
establishment elitists had ruined the country and he was an outsider who would
“drain the swamp” of that ilk. Out of the 21 names, only four are from Ivy League
schools, with the majority from the American Heartland.
Conservatives have long railed against justices who
view the Constitution as a "living document" that could be molded and
transformed by the will of a single justice to suit current social
In addition to this ideological transition, many conservatives
hope that Trump’s pick will address the legal principle of stare decisis. This concept, which means "let the decision stand," brought the power of precedents to the courtroom.
Keith Anderson, an attorney and partner with Bradley
Arant Boult Cummings LLP in Birmingham, Alabama, recently wrote a blog that summed up the experience of Trump’s picks and discussed some major court
cases a new jurist would undoubtedly influence.
“In general, I think the conventional thinking is that Trump will
be a little bit more pro-employer,"
Anderson told Legal
"We will have to wait and see.”
Trump’s list has brought some solace to anxious
supporters who feared being "Soutered." In 1990, former President George H.W. Bush
nominated Justice David H. Souter, a justice from New Hampshire’s Supreme
Court, to be a U.S. Supreme Court Justice. Conservatives were greatly
disillusioned when Souter turned out to have a strong liberal bent that swung
the court to the Left.
Those fearing that the court will undergo a strong
conservative metamorphosis following a Trump pick may have nothing to really
worry about. Anderson stated that any pick would “probably not cause a hard
right shift” in the court.
Yet a new conservative justice would undoubtedly influence
some important cases before the court.
Anderson reports that a new justice
would be judging the “validity of some National Labor Relations Board
decisions” (in particular the National
Labor Relations Board v. SW General Inc.), reviewing “EEOC enforcement
subpoenas” (McClane Co. v. Equal
Employment Opportunity Commission), and determining the validity of
“compulsory union fees” (Serna v.
Transport Workers of America).
All of this is conjecture, however. As Anderson told Legal Newsline, everyone will just have
to wait and see what actually develops.