By Lisa Soronen
It is of course too soon to know—but never too soon to speculate!
While still a candidate, President-elect Donald Trump released two lists of potential U.S. Supreme Court nominees to fill the current vacancy on the court. While he has indicated that these lists are definitive, only time will tell whether he will in fact stick to them when making a nomination. Both lists were well-received by conservatives.
Trump should have little trouble getting a conservative nominee through the majority-Republican Senate. If Senate Democrats filibuster Trump’s nominee, Senate Republicans are likely to exercise the “nuclear option,” meaning only a simple majority of senators will be needed to confirm the nominee.
Assuming all goes according to plan, a conservative justice will replace another conservative justice, the late Justice Antonin Scalia, some time next spring. But, of course, no two justices are interchangeable especially a justice like Scalia who was guided by originalism and textualism and didn’t always tow the party line on issues like, for example, the Fourth Amendment.
What does this mean for state and local governments?
Conservative justices tend to be good for state and local governments on issues like public employment, qualified immunity, and the Fourth Amendment. In theory, conservative justices are better for state and local governments on pre-emption and federalism, but often these consideration are clouded by the facts of the case.
Liberal justices tend be more deferential to the government generally and better for state and local governments on land use and tax issues. And, of course, liberal justices are more likely to advance social issues, on which state and local governments are often divided.
These days no justices are great for state and local governments in First Amendment cases!
In short, it is difficult to imagine that Trump’s first Supreme Court nominee will shift the Supreme Court much at all. So, in terms of the Supreme Court, state and local governments are likely to be in much of the same position they have been in recent history.
Additional appointments are likely, though not inevitable, in the next four years. The average retirement age for Supreme Court justices is 79. The oldest justices currently on the court are liberals and “swing” Justice Anthony Kennedy, who is 80. Justice Ruth Bader Ginsburg is 83) and Justice Andrew Breyer is 78.
If Trump makes multiple appointments to the Supreme Court, it will likely have a larger majority of conservative justices, and they will no longer need Kennedy’s vote in cases involving social issues.
The biggest change for now on the Supreme Court likely to affect state and local governments (and others) could be the cases the court will consider. Ilya Shapiro blogging for CATO at Liberty explains: “If you live by executive action, you die by executive action—which means that many high-profile cases looming on the Supreme Court docket will simply go away. DAPA (executive action on immigration) and the Clean Power Plan will be rescinded, religious nonprofits will be exempt from Obamacare, Trump’s HHS won’t make the illegal payments that have led to House v. Burwell, and more. That may include the transgender-bathroom guidance, which if rescinded would remove the biggest controversy from the court’s current term.”
Again, only time will tell.
Lisa Soronen is executive director of the State and Local Legal Foundation and writes frequently about the Supreme Court for the NCSL Blog.