The Donald Trump presidency, coupled with the new Congress, is likely to produce major changes in federal law. But for the Supreme Court, expect a surprising amount of continuity — far more than conservatives hope and progressives fear.
If, as expected, Trump is able to replace Justice Antonin Scalia, the court will look a lot like it did until Scalia died in February: four relative liberals (Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor); two moderate conservatives (John Roberts and Anthony Kennedy); and three relative conservatives (Clarence Thomas, Samuel Alito, and the new justice).
That means it would reflect the same ideological makeup as the court that upheld Obamacare and required states to recognize same-sex marriages. It would contain the same five justices — a majority — who recently voted to uphold affirmative action programs and to invalidate restrictions on the abortion right.
A court like that won’t license a Republican-led executive branch to do whatever it wants. It will assert the rule of law. It will rarely veer off in novel directions.
To be sure, things will be different if Trump is able to replace one of the liberal justices. Neither Ginsburg (who is 83) nor Breyer (78) is a spring chicken. But they both appear to be in good health; don’t be surprised if they continue to serve for the next four years.
Suppose, though, that one of them does resign. At that point, significant changes would be possible. But probably not many.
One reason involves the idea of respect for precedent. The justices are usually reluctant to disturb the court’s previous rulings, even if they disagree strongly with them. In this light, would a new majority really want to announce in, say, 2018, that states can ban same-sex marriage, after years of saying otherwise? That’s unlikely: Such an abrupt reversal, defeating widespread expectations, would make the law seem both unstable and awkwardly political.
Would a Trump court want to overrule Roe v. Wade, which has been the law since 1973, and thus allow states to ban abortion? Considering the intensity of conservative opposition to abortion, that is somewhat more probable. But judges are not politicians, and again to avoid the appearance of destabilizing constitutional law, any majority would hesitate before doing something so dramatic.
‘Judicial minimalism’
Would a court composed of Alito, Roberts, Kennedy, Thomas, and one or two Trump appointees be willing to grant broad new powers to the president? No chance. The current conservatives have expressed a great deal of skepticism about executive authority. They aren’t going to turn on a dime merely because the president is a Republican.
There is a more general point. Many judges (and Roberts in particular) are drawn to “judicial minimalism”; they prefer to focus on the facts of particular cases. They like small steps and abhor bold movements or big theories.
An instructive example: In the 1970s, many progressives were terrified when President Richard Nixon found himself a position to transform a left-of-center court, led by Earl Warren, and to appoint no fewer than four “strict constructionists.” And to be sure, the Nixon court, as it was sometimes called, repeatedly disappointed the left. It halted the movement toward recognition of welfare rights, declined to expand the rights of criminal defendants, and refused to recognize a constitutional right to education.
But the whole period is aptly described as “the counter-revolution that wasn’t.” The Nixon court maintained a lot of continuity with its predecessor. Believing that the commitment to the rule of law entails humility and respect for the past, it preserved most of its precedents, even as it refused to build on them.
There’s an excellent chance that in four years, constitutional law will look pretty much the same as it does now.
Cass R. Sunstein, a Bloomberg View columnist, is director of the Harvard Law School’s program on behavioral economics and public policy.
