Both Donald Trump and Hillary Clinton say the Supreme Court is a paramount reason to vote for them. Trump, in particular, has used the specter of an open court seat to try to convince traditional conservatives to check his name off on their ballots despite disagreeing with many of his other positions.
After the death of conservative Justice Antonin Scalia in February, there is an open seat on the court, and chances are whoever wins the presidency next month will get to fill it. President Obama nominated well-respected moderate Merrick Garland earlier this year, but the Republican-dominated Congress has refused to bring his nomination to a vote. Garland remains in SCOTUS nominee limbo after 224 days. That's about 100 days longer than any nominee in US history. To make matters worse, this week, with poll numbers increasingly suggesting a Clinton win, some Republicans have even signaled that they will do everything they can to stop Clinton from appointing a new justice even if she wins. They would prefer, it seems to leave the Supreme Court at a four-to-four, liberal-conservative impasse. But doing so would be unprecedented and troublesome. Most likely, the deadlock will be broken by a ninth judge appointed by a new president. And when that happens, which issues will be most sensitive to the rebalancing? We took a look.
Few issues are more contentious in American politics than the 2nd Amendment. Clinton is happy to have made an enemy of the NRA, and Trump says gun owner's rights are under siege. In fact, Trump hopes that appointing a judge who will support the rights of gun owners will be incentive enough to get indecisive traditional Republicans to turn out for him on Election Day. Crucially, the landmark court case protecting an individual's right to bear arms, the 2008 Heller v the District of Columbia was a tight 5-4 decision. "It’s a closely divided court on gun regulation," says Kate Shaw, a lawyer at the Cardozo School of Law at Yeshiva University, who specializes in administrative and constitutional law (and once clerked for Supreme Court Justice John Paul Stevens). "But even with a new justice, it's more a question of how these big cases will be read than if they'll be overturned."
With either an extra conservative or liberal voice on the bench, the Heller decision could be read more broadly or narrowly, respectively. And since we're almost guaranteed to see cases arguing for and against things like assault weapon bans (the court just declined to hear one of those cases in June, possibly to avoid a 4-4 decision) that could have a big impact on gun laws going forward.
It's pretty clear where a Hillary Clinton-appointed SCOTUS would stand on abortion rights: "If you get a liberal, you’re going to see that state control of abortions loosens rather than tightens," says Rory Little, a lawyer at UC Hastings, who publishes the American Bar Association’s annual review of the Supreme Court's terms. States encroaching on Roe v. Wade happens often. Just this June, there were two cases arguing that Texas, and Indiana had overstepped the bounds of Roe v. Wade, and the Texas case made it all the way up to the Supreme Court.
But during the third presidential debate, Donald Trump said his SCOTUS appointees would overturn Roe v. Wade "automatically." It's an extreme thing to say, and not all that reality based. “Things don’t just get struck down automatically," says Shaw. "And even if there was one additional Trump appointee, you would still probably have a 5-4 court.”
That's because Justice Anthony Kennedy has sided with liberal justices on abortion rights before---in June he supported striking down Texas restrictions on abortion clinics---so he probably wouldn't be down with overturning Roe v. Wade altogether. But that doesn’t mean the precedent is bulletproof. “If there were two or three liberal retirements during a Trump presidency, then I think that the constitutional right to abortion would be in real question,” Shaw says.
Another perennial legal morality question is the death penalty. “Right now, the Supreme Court is usually four to four on the death penalty, so another justice could tip the balance,” says Little. And while there are no enormous death penalty cases in the lower court pipeline at the moment---nothing that questions whether the death penalty is consistent with the 8th Amendment---the Court is hearing two cases that have bearing on the issue.
The first is Buck v Davis, which the court heard on October 5, but hasn't yet ruled on. A Texas court sentenced Duane Buck, a black man, to death for the 1995 murder of his girlfriend and one of her friends. Texas law only allows the death penalty if the prosecution can prove that the defendant will be a future risk to society. During Buck's trial, an expert witness seems to have "proved" Buck's future dangerousness via blatant racism, so the Court will determine whether that means the death sentence should be lifted.
The second is Moore v Texas, set for argument on November 29. Defendant Bobby Moore has been on death row since 1980 for killing a man during a supermarket robbery. However, Moore is intellectually disabled, which typically precludes a death sentence. SCOTUS will look at whether Texas' standards for assessing intellectual disability still gel with modern medicine.
No ruling on either case will strike down the death penalty as unconstitutional, but they will drive discussion. “It will be interesting to see if there are anything in their separate writings signaling whether someone is really questioning it,” says Shaw. "I think that if you had another Clinton appointee there’s a chance that the court would take a much harder look at the death penalty."
Citizens United v FEC---the Supreme Court decision that ruled that corporations are people too, and can't be prevented from engaging in political speech in the form of donations---was a tight 5-4 ruling. With Scalia gone, if a similar case were to hit the court it would be 4-4.
Since campaign finance has been such a big issue during the presidential campaign, it's likely to be a continued point of discussion and litigation. "One of the big stories of the Roberts court is striking down government regulations on campaign finance," says Shaw. "If you had a very strong 5 or 6 person majority against regulation, you could end up with totally unregulated system."
A lot of people have a problem with transgender people peeing where they are most comfortable peeing. The anti-trans rhetoric and litigation has been homophobic and expensive. "There are a bunch of cases in the lower courts dealing with transgender rights issues," says Shaw. "And it's an issue where you could certainly see another member of the court influencing the outcome."
One case the court has currently put a hold on is Gloucester County School Board v GG. Gavin Grimm is a transgender boy who wants to use the men's bathroom at his high school in Virginia, but his school board objected. A lower court ruled in favor of Grimm, but the Supreme Court stepped in and temporarily blocked that decision in order to, as Justice Breyer said, "maintain the status quo" until the Court can rule on it formally. Shaw expects the Court to decide very soon whether it will hear the case.
The Fourth Amendment protects US citizens from unreasonable search and seizure, an issue that's particularly relevant in a time when police racial biases and controversial policies like stop-and-frisk are dominating the national conversation. "There's a Fourth Amendment case every three seconds in this country," says Little.
Trump has come out strongly in favor of stop and frisk while campaigning this year and has spoken of Scalia as the model for the kind of justices he would appoint. However, though he was a staunch conservative, Scalia's absence changes the Court's position on this in an unexpected way. "Justice Scalia was the liberal guy on the court about the 4th amendment," Little says. "He's the reason you can't have cell phone searches and drug dogs on the front porch without a warrant." So, especially as the country renegotiates its law enforcement/internet security protocols, Scalia's absence would be especially felt if the ninth seat were filled by a Trump nominee.
And finally, there's controversy broiling around religious freedom. Another case the Supreme Court is holding out on hearing is Trinity Lutheran Church of Columbia v Pauley. Basically what's going on is Missouri declined to award a religious school a grant of recycled rubber, which they would have used to resurface their playground, because the Establishment Clause prohibits giving state funds to religious organizations. Separation of church and state and all that.
The school counter-argues that denying them rubber is a violation of the Free Exercise clause, which says you shouldn't put limits on people's ability to practice religion freely. "This is really hard," Shaw says. "Court watchers have been speculating that they expect a 4-4 tie, so they're holding the case until another justice is appointed. There's no real way to know for sure, but it's clear they are closely divided on these kinds of issues."
