November 15, 2016
This past Sunday, President-elect Donald Trump gave his first post-election interview, during which he more or less made clear his intention to appoint Supreme Court justices who would seek to remove the constitutional abortion protections first enshrined in 1973’s Roe v. Wade.
Justice Scalia’s death in February famously left a vacancy in the Supreme Court that the Republican-held Senate refused to fill during President Obama’s term on the chance that his successor would be a Republican. In light of last week’s election results, that strategy has paid off: Trump will have broad latitude to appoint Justice Scalia’s replacement, who will likely be as conservative as Scalia was, if not more so.
But would that be enough to tip the Supreme Court toward overturning constitutional abortion rights? By itself, highly unlikely.
As I wrote back in June, the Court’s Whole Women’s Health v. Hellerstedt ruling was something of a paradigm shift for Supreme Court abortion jurisprudence, in that it established even stronger abortion right protections than 1992’s Planned Parenthood v. Casey – and by a five justice majority at that. Filling Scalia’s seat with a justice rigorously opposed to abortion rights would do little to change that.
In fact, the only discernable change that Trump’s nominee would likely have on Supreme Court jurisprudence would be on Fourth Amendment issues, where Scalia would typically join his liberal colleagues in protecting individual civil liberties from state intrusion.
That being said, some justices may be receiving more attention than usual over the next four years — specifically, Justices Ruth Bader Ginsburg and Stephen Breyer, who are 83 years old and 78 years old respectively.
A death of either during Trump’s term, absent the same intransigence on the part of Senate Democrats that the Senate Republicans displayed over the past nine months, would allow Trump to replace one of the liberal members of the Court with a decidedly conservative one. Such a change would dramatically shift the Court further rightward, and constitutional abortion rights would undoubtedly be at serious risk (among a number of other rights and rulings).
But neither justice is currently suffering from any serious health ailments. Although that could certainly change very quickly given both Ginsburg’s and Breyer’s ages, they also receive some of the best medical care in the country. Thus, either or both of their deaths within the next four years, while certainly a distinct possibility, isn’t inevitable.
On the other hand, there is another justice whose replacement by a Trump nominee would have a similarly dire effect on abortion rights: Justice Anthony Kennedy.
Justice Kennedy, currently 80 years old, is perhaps roughly as likely to pass away within the next four years as either Ginsburg or Breyer. But, being appointed by a Republican president (Ronald Reagan), and currently considering himself a Republican, Kennedy is far more likely than the other two to retire sometime during Trump’s tenure.
As Court observers may remember, Justice Sandra Day O’Connor’s replacement in 2006 with Justice Samuel Alito was the single most significant event responsible for the Court’s rightward shift over the past decade. O’Connor was something of a swing vote, and her replacement with the reliably conservative Alito had a profound impact on the Court’s decisions.
Similarly, Justice Kennedy is currently seen as the Court’s perennial swing voter. In fact, his vote was the crucial tipping point for legalizing same-sex marriage nationwide in 2015’s Obergefell v. Hodges. His retirement over the next four years could put that ruling, in addition to a multitude of others, at risk.
True, Justice Kennedy has not signaled publicly that he is ready to retire, and recent justices have served well past the age of 80 before retiring (Justice John Paul Stevens retired at age 90 in 2010). Nevertheless, justices often announce their retirement to the surprise of the public, and Justice Kennedy may follow such a path.
Should such an event come to pass (which would be most likely near the end of the Supreme Court’s term in June), we’ll take another look at the potential consequences in more detail.
But given both Justice Kennedy’s recent decisions favoring abortion rights and Trump’s stance on seeking to appoint justices to invalidate such rights, Kennedy’s retirement would be almost as fatal for abortion rights under the Constitution as would the deaths of either Justice Ginsburg or Justice Breyer.