Legal Newsline

Tuesday, July 16, 2019

Attorney: Trump U.S. SC pick likely more pro-employer

By Christopher Knoll | Jan 3, 2017

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 circumstances. 

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 Newsline. "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.

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