The NCSL Blog


By Mark Wolf

For all the attention being paid to Donald Trump's cabinet appointees, his choice to replace Justice Antonin Scalia on the U.S. Supreme Court will likely have the longest-lasting impact on the nation.

supreme court“He has a list and swears he’s going to stick to it,” said Lisa Soronen, executive director of the State and Local Legal Center, who gave two presentations on the Supreme Court during the NCSL Capitol Forum. He says he’s narrowed it down to three or four ,so at this point we should believe him.

Because the list is so long it’s hard to be sure who it might be but the people you see covered most often are William Pryor from the 11th Circuit Court of Appeals and Diane Sykes from the 7th Circuit. 

Pryor has made a bunch of statements that Roe v. Wade is an abomination and I think he would enrage the left. Sykes is 58 (she will be 59 later this month) and some people think that might be a little old where the 51-52 age is more the sweet spot. She is a reliable conservative.

Why those two names have come to the top I’m not sure. He’s gone around the country and found his people and he’s going to pick one of them. They range from conservative to very conservative and they won’t disappoint.

Soronen said the case that is most likely to gather the most interest during the coming term is Gloucester County School Board v. G.G, which involves a transgender student who is biologically female but identifies as a male and wants to use the boys' bathroom.

It has the sort of cutting edge social justice issue from one side’s perspective but it has a lot of technical legal issues, like whether or not the court should defer to an agency's interpretation of a regulation the agency believes means that a transgender  student should be able to use the restroom of his or her choice based on gender identity, Soronen said.

The court can sort of cloak its opinon in deference rather than get into substantive issues of what Title 9 means and what gender equality means, she said. (For a more detailed examination of the case, check out this NCSL Blog post.)

Soronen sees two issues coming into play for voter ID cases that could reach the court.

Can a challenger come up with great evidence that a voter ID law hits minorities harder and makes it difficult or impossible for people to vote? If challengers can prove that, the voter ID laws are going to be in trouble. The other issue is failsafes. If you don't have a good failsafe—where someone who doesn't have an ID but is a citizen and can't vote. That's going to be the tail that wags the dog, she said.

Ballot selfie cases are perennials in election years.

The interesting thing about ballot selfies is that the laws are 125 years old and they weren’t intended to have anything to do with people taking a photograph of their ballot. They were intended so that people who had completed ballots didn’t intimidate people who hadn't. The courts have had a mixed reaction about selfies but one factor that has made courts look at these differently is the difference between taking a ballot selfie at home and taking one in a polling setting, a public forum where many people are trying to speak so one person doesn’t have the sort of free specch rights they have in their home.

It also raises privacy concerns that other people may not want to be in your ballot selfie. The idea that people would treat a polling place as a beauty salon or a photographic studio is sort of offensive to people who want to get through the lines quickly and judges are not amused by the idea. Long term I can't see courts saying you can’t take a picture of yourself with your ballot in your home but I think courts may continue to look differently at the ballot selfie taken at the polling place.

Mark Wolf is editor of the NCSL Blog.

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About the NCSL Blog

This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.