The Erratic Present, and Unpredictable Future, of the Legal System under Trump

Nick Beard
Nick Beard

It would be foolish not to begin this blog with a note that President-elect Donald Trump has often been proved to be erratic and difficult to predict.  Accordingly, any forecasts of his decisions while in government should be judged with a healthy scepticism and a caveat that during his presidential campaign, Donald Trump has changed his position on several issues likely to be adjudicated during his presidency – abortion rights, funding by wealthy corporations, marriage equality and free access of the press.

Throughout the campaign, the prerogative of the next president to elect at least one member of the Supreme Court was widely discussed.  While President Obama appointed Merrick Garland to fill the vacancy left by the death of Antonin Scalia, the Senate has successfully prevented the hearing to confirm Garland to this position and seems unlikely to continue to block this appointment until the end of Obama’s term.  It was often touted as a major reason that Americans affiliated with a political party and uncomfortable with their party’s nominee should still vote for them.  President Clinton or Trump would provide the nominee to fill Scalia’s seat and with only one justice currently under the age of 60, any slots made available by retirement of a justice over the next four to eight years.

Donald Trump has released a list of potential justices he would consider elevating to the Supreme Court: all 11 were appointed by Republican politicians, all 11 are white and 8 of the 11 are men.  Interestingly, he had previously cited his sister, Maryanne Trump Barry (considered to be a broad defender of abortion rights) as a possible Supreme Court nominee.  This is particularly significant, as Trump has identified abortion as one of the most pressing current topics facing the Supreme Court.  The leading case, Roe v. Wade, which allows women the right to privacy in order to access a termination in the first trimester of their pregnancy, has been restricted by Planned Parenthood v. Casey, to allow restrictions to be placed on abortion access, as long as these restrictions do not place an undue burden on the woman.  This was reinforced in the recent Whole Woman’s Health v. Hellerstedt case (in a 5-3 decision determined after Scalia’s death), where the majority of the Court argued that the onerous restrictions on abortion clinics were not intended to safeguard women’s health, but to make abortion access more difficult.  Proponents of abortion rights are concerned that a change in the make up of the Court would allow abortion access to be steadily chiselled away through increasing unrealistic requirements for women’s health centres.

Another Supreme Court case which was discussed widely during the 2016 election was Citizens United v. FEC.  The 2010 case, decided 5 to 4, has prevented the Federal Elections Commission from limiting the amount of money which could be raised and spent as part of presidential campaigns, leading to the accusation that candidates were indebted to wealthy donors and their agendas .  Donald Trump, throughout his campaign, bemoaned the role of financial lobbying in presidential election.  As part of his populace platform, he often cited the corrupting influence of large campaign donations and claimed that due to his large personal fortune, he would be able to self-fund the majority of his campaign.  Trump did, however, receive large individual and corporate donations and despite promises to “drain the swamp” of money in Washington,  has already hired former lobbyists to aid his transition team, as well as hiring a recent president of Citizens United (the lobby group which brought the relevant court case) to serve within his campaign.  This would indicate that while Trump has been publicly critical of the decision, he has made no tangible policy proposals for campaign finance reform.

Donald Trump will definitely have the task of appointing one judge to the Supreme Court and depending on future retirement of justices, up to four vacancies.  His position on constitutional law seems to be uneven and erratic, without thoughtful contributions as to the role of the judiciary.  Perhaps as he assumes the role of the President, his exposure to the original American concept of judicial review and the importance of judicial oversight of congressional and executive action will increase – but as always with Donald Trump, who can guess?

Nick Beard is a PhD Student and Scholar at the School of Law, University of Sussex

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