538: Clinton And Trump Are Both Promising An Extreme Supreme Court

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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12 Responses

  1. Morat20 says:

    I found that headline to be a little off the mark once you dug into the details.

    To sum up, given the death of Scalia and the judged most likely to retire, Clinton will move the median judge one to the left. (Replacing Scalia with a liberal or even moderate justice like Garland will do this). That’s as far as she can shift it, as the likely retirements are all fairly liberal judges.

    Trump, on the other hand, will replace Scalia with someone with similar views (the betting money is he doesn’t care about judges, but knows his voters do, so it’ll be Federalist Society picks at best). And then the retiring judges are left leaning, so each he replaces will move the court one justice further to the right.

    So the net effect is that Clinton will be able to move the middle of the Court from Kennedy to Breyer. Trump, on the other hand, would (assuming two or three retirements) be able to move the center of the Court from Kenney to somewhere around Alito.

    I can’t really call a one-judge shift “extreme” for Clinton the way I could a three judge shift towards Trump. (I admit to some bias here, as I can’t consider Breyer to be ‘extreme’ and the bulk of her replacements will be Judges no more liberal than those replaced. So shifting the center of the Court towards Breyer is a leftward shift, but not a big one. Shifting it so that Alito is the median justice IS a large shift).

    Ultimately, I think the problem is the scoring system he’s using to determine ‘extreme’ — I don’t think it means what he thinks it means, and so the headline is pretty misleading.

    Unless you consider Breyer to be as far to the left as Alito or Thomas is to the right.Report

    • Burt Likko in reply to Morat20 says:

      Let’s say a hypothetical President Clinton replaces Justices Scalia and Ginsburg with hypothetical Justices Merrick Garland and Sri Srinivasan. Although both of those new Justices are themselves estimated to be appreciably less liberal than, say, Ruth Bader Ginsburg, this results in a five-member most-of-the-time liberal voting bloc. That’s a big deal. Especially with three members of that bloc in their fifties and the other two in their early sixties.

      After that, she has a reasonable chance of getting to name a replacement for swing vote Anthony Kennedy and shore up any attrition within that liberal bloc (Stephen Breyer has the longest tenure and would at that point be the most advanced in age of the liberal bloc), so by the time she leaves office it’s easily conceivable that the default position on any case of note will be 6-3 for the liberal side of things. That’s what I take the “extreme Supreme Court” to mean. (I presume Clarence Thomas is going out with his feet first no matter what.)

      Conversely, a hypothetical President Trump replaces Justice Scalia with, say, Diane Sykes, we’d likely be back to the Kennedy-swing-vote Court we’ve all grown familiar with since the Bush Administration. I assume that if Trump is elected, Justice Ginsburg decides to go out feet first for so long as he’s in office, so at some uncertain and hopefully long-delayed date, if Trump is still in office, he names her replacement and creates a reliable five-member conservative bloc, six-member if he can replace Justice Kennedy with, say, William Pryor. A seven-member conservative bloc if through further attrition he can replace Justice Stephen Breyer with, say, Raymond Gruender. Again, the members of the majority bloc in this scenario are all young enough to plausibly remain on the High Court, ruling together, into the 2040’s.

      Either way, we’re looking at a high probability that the Supreme Court will become ideologically determinate for the next twenty to twenty-five years.Report

      • Morat20 in reply to Burt Likko says:

        Clinton’s is still a one-justice shift — 5-4 conservative to 5-4 liberal. Trump’s is, by your count, at least a two-judge shift (three if RBG leaves the court).

        That’s not even getting into the actual judicial ideology of the picks themselves — for instance, Clinton seems to favor justices who are more liberal than Kennedy, but not much more (if any) than Breyer.

        It’s impossible to tell who Trump will pick, but if he delegates that to his running mate or the GOP in general, you’re talking judges at least as far right as Scalia or Alito.Report

      • become ideologically determinate

        Unlike the Court that decides presidential elections, kills any notion of campaign finance reform, and guts the Voting Rights Act?Report

      • Don Zeko in reply to Burt Likko says:

        In scenario A, how willing do you think the liberals will be to overturn Roberts Court precedent, @burt-likko ?Report

        • Burt Likko in reply to Don Zeko says:

          SWAG: most “overturns” will be capacious, but incomplete, distinguishments. Most rules will survive but be chiseled at or have holes poked in them. Rather like what pro-life Justices have done to Roe v. Wade.Report

  2. Damon says:

    5-4 liberal swing. Lot’s of “settled” law gonna be coming back up to be litigated. That’s probably a major factor in the right’s get out the vote. You’d loose a lot of things. Campaign finance will come up, guns, etc.Report

  3. Jesse Ewiak says:

    A couple notches to the right of the Warren Court is extreme now?Report