Bench Memos

Law & the Courts

Some Observations on the Elections

1. Wow!

2. I had worked to reconcile myself to the prospect that the Supreme Court would move firmly into liberal hands, with a 6-3 liberal majority dominant for a long time. Now, suddenly, the landscape has entirely changed. If President-elect Trump and the Republican Senate do things right, Justice Scalia’s seat will be filled by a judicial conservative, as will any other seats that open up before 2021.

Contrary to the media myth that we’ve had a conservative Court in recent decades, conservative victories have depended on winning the vote of Justice Kennedy (and, before 2006, also the vote of Justice O’Connor). If Trump is able to replace Justice Ginsburg, Justice Breyer, or Justice Kennedy over the next four years, we may finally have an actual conservative majority. And if he is able to replace all three of them, and does so well, we could have a 7-2 conservative majority.

3. Republican leader Mitch McConnell deserves huge credit for his strategy on the Scalia vacancy. That strategy now looks to pay off big. (But even if it hadn’t, it was clearly the right strategy.)

4. I readily acknowledge that I found both Trump and Hillary Clinton deeply objectionable (for different reasons) as presidential candidates. I respect both NeverTrumpers and those who came down for Trump as the lesser evil.

Does my elation at Hillary’s defeat and at the prospect of a transformed Court signal that I should have enthusiastically jumped on the Trump bandwagon? Well, that’s one theory, and it’s one I take seriously. But the fact of the matter is that I said all along that the Supreme Court was the best reason to vote for Trump. While I had (and still have) concerns over whether he will carry through on his promise to appoint strong conservative justices, my deeper fears about Trump relate to his erratic and thuggish temperament and to how his temperament will affect important decisions, especially (but not exclusively) on national security and foreign policy.

I hope very much that Trump disproves my fears. We’ll see.


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