President Donald Trump has nominated Neil Gorsuch, a 49-year-old judge appointed to the 10th Circuit of the U.S Court of Appeals in 2006 by President George W. Bush, to the U.S. Supreme Court. Members of the Senate are preparing for a drawn-out confirmation process to fill the court’s ninth seat, which has been empty since Justice Antonin Scalia died last February. Senate Republicans refused to consider a nominee named by President Obama.
University of Virginia law professor A.E. Dick Howard is an expert on the Supreme Court. Executive director of the commission that re-wrote Virginia’s constitution in 1971, Howard is also an expert in U.S. constitutional law. He has some predictions for what a conservative court agenda will look like in the months and years ahead.
“Suppose I had to sum up the conservative agenda. I think whoever is nominated – that judge will conform to most of these objectives,” Howard said.
Ending affirmative action in college admission: Howard said conservatives would like to see affirmative action ended in the admission process, which would prevent universities from giving preference on the basis of race. In the last case it considered, Fisher v. University of Texas, the Supreme Court held that admissions offices may consider race as one factor among many in ensuring a diverse student population.
Restricting access to abortion: “Wishing to overrule Roe v. Wade is probably not practical, and therefore simply confining it as tightly as possible” is an option, he said, “giving the states a good deal of breathing room in regulating abortions.”
Rolling back the administrative state: Howard anticipates the court to trim the wings of government agencies in particular. “I think conservatives would like courts to take a more wholesale review of what agencies do and limit their discretion,” Howard said. “Environmental law would be a big example. The Environmental Protection Agency’s orders, for example the Clean Power Plan of President Obama, it’s very controversial. It’s presently before the D.C. Circuit. And I think the Supreme Court actually stayed the plan pending the decision of the D.C. Circuit. I don’t know what the D.C. Circuit will do. But I think, in the environmental area, I’m sure there is a wish of conservatives generally to see the EPA’s role very confined,” he said. “Regulating air and water and carbon emissions and clean coal and all the rest of it; I think it cuts pretty much across the board, but especially in the environmental area.”
Campaign finance: “I think conservatives want to limit government power to regulate campaign finance. Campaign finance is a very destructive force in American politics. Conservatives would like to let the money flow,” he said. “They’ve already issued decisions which have overturned some congressional regulations, Citizen’s United being the obvious example.”
Voting rights: “In the area of voting, I think conservatives want to uphold state actions that limit access to the ballot; voter I.D. laws, for example. The court has been very divided on voter I.D. laws,” Howard said. “There’s no clear decision on that and Republican legislatures have been passing any number of laws that have direct impact on access to the ballot. I think the new justice would be likely to be attuned to that.”
Gerrymandering: “Conservatives want to stay out of judicial supervision of partisan gerrymandering. There are two ways the ballot can be affected: voter I.D. laws and the way you draw legislative districts,” he said. “Virginia is an example. Fifty-two percent of Virginians who voted in the last legislative election voted Democratic, but the Democrats hold roughly 30 of 100 seats in the House of Delegates. You can see the disproportion. Democrats play the same game in other states. I think the conservatives would not like the courts to get into that.”
Gun rights: “We now have D.C. v. Heller, which establishes the right to bear arms as an individual right, and that was a Scalia opinion. It left open a lot of questions about registration, gun shows, what kind of weapons you can have and where you can have them,” Howard said. “Can you carry them into public buildings? There are lots of questions. And some localities have very restrictive ordinances and conservatives would like to wipe those ordinances off the books.”
The death penalty: “The court has been trimming away state power, and I think conservatives would like to leave it open to states to have the death penalty,” he said.
Property rights: “Clearly, conservatives want to protect private property against government takings and regulation generally. There was a case of Kelo v. City of New London, where the court ruled 5-4 to uphold a plan where property was being condemned by the locality to create a development district which would be held by other property owners,” Howard explained. “So you’re basically taking A’s property and it winds up in B’s hands. It doesn’t become a government institution. Conservatives clearly would like to overturn that case.”
Religion: “Conservatives are very keen on allowing more state aid to, and state support of, religion – voucher plans for children, church schools, that sort of thing. Conservatives are steadily dismantling Mr. Jefferson’s wall between church and state. That started, roughly, in the late 1990s. The wall of separation between church and state is not as robust as it was a few decades back.”
Howard said there are other things to watch for, including gay rights. “Justice Anthony Kennedy has written the court’s opinion on every one of the gay rights cases, starting with Lawrence v. Texas, which was the anti-sodomy statute; U.S. v. Windsor, which struck down the Defense of Marriage Act; and finally, the case that held that entering into a same-sex marriage is protected by the due process clause,” he said. “I’m sure the conservative agenda would include rolling back gay rights.
“In general, that is the kind of agenda conservatives have, and they are keen on seeking that whoever is put on the court would be, by and large, supporting these issues,” Howard said.
He said the key to understanding modern nominations and confirmations is that a process that has always been political is now ideological, partisan and highly charged.
“The process whereby justices are put on the court today more narrowly resembles the divisions in the country at large,” he said. “We are so aware of how the country is divided; blue states, red states, urban, rural, Trump, Clinton. That’s what the last campaign was about. I think that same heightened division spills over into judicial nominations and confirmations.”
Will the confirmation process be smooth? “I expect since this is the first time around the track for a Trump nominee, it’s going to carry all of that political freight,” Howard said.
And if a liberal justice steps down later? “That’s really big,” Howard said.
In 2013, the Democrats ended the filibuster in judicial nominations, but not for the Supreme Court.
“For the Supreme Court, at the moment, the present rules require 60 votes to end a filibuster,” Howard said. “It’s entirely possible that the Republicans will change the rules and abolish the filibuster. I think they are perfectly willing to do that if need be. That’s the so-called nuclear option. That’s part of the scenery. It’s going to be a spectacle.”