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Young activists demonstrate in the Supreme Court on June 28 as President Trump prepares to replace Judge Anthony M. Kennedy, who is retiring. (J. Scott Applewhite / AP)
The retirement announced by Judge Anthony M. Kennedy has led many to speculate on how the second Trump appointment to the Supreme Court will affect national politics. Most think that the court will recover. But is it really certain?
Here's what the court looks like ideologically at the moment
Political scientists identify the ideological positions of judges through statistical analyzes of their votes in Supreme Court cases. In the figure below, the ideological opinions of the judges are estimated on the basis of the votes cast during the period 2012-2013. I have noted Judge Neil M. Gorsuch on the basis of his close agreement with judges Clarence Thomas and Samuel A. Alito Jr. on close cases. This is not the only way to place judges in the left-right spectrum, but political scientists generally agree that judges align as follows:
Current Supreme Court judges on a scale ideological left-right. Judges Ruth Bader Ginsburg, Sonia Sotomayor, Stephen G. Breyer and Elena Kagan seated on the left. On the right are Gorsuch, Alito and Thomas. Chief Justice John G. Roberts Jr. is a step to the left of this conservative group. He sometimes sided with the liberals of the court, as he did when he wrote the opinion in 2012 upholding the constitutionality of the Affordable Care Act. He also wrote for a moderate majority this month in Carpenter c. United States in which the court ruled that the police needed warrants to search mobile phone files.
Liberal and conservative camps. This position allowed him to form a winning majority coalition with the conservative or liberal block of judges. In keeping with the way political scientists explain court decisions, Kennedy's status as "median" justice gave him power over the court. In cases decided by a vote of 5 to 4, Kennedy has long sided with the winning coalition much more often than other judges.
Can Trump move the yard decisively to the right?
Trump would like to move the yard to the right. This strongly encourages him to appoint an extremely conservative justice. But keep in mind the importance of median justice. As long as Trump chooses a more conservative candidate than Roberts, Roberts will become the new median of the court.
[Why has it taken conservatives 50 years to get a reliable majority on the Supreme Court?]
Most observers assume that this would lead the court to make much more conservative decisions. But even if the judges are very ideologically predictable, they are not perfectly predictable.
Sometimes court cases involve legal or other principles so important to a lawyer that he or she coalesced. There are many examples. Roberts voted with the Liberals to maintain the Affordable Care Act. Kagan voted to cancel the compulsory Medicaid expansion of the ACA in the 50 states. And so on
To reduce the chances of this, conservatives seeking a more conservative court will push Trump to appoint a very conservative candidate whose views are significantly to Roberts' right. The Conservatives want to avoid a replay of Kennedy, who has often sided with the Liberals on important cases – despite being fairly conservative.
[The Supreme Court’s travel ban decision is what you’d expect if this were a ‘normal’ presidency]
Will the Senate follow?
Trump can only put an extreme conservative on the bench with the support of a Senate majority. At present, the GOP has a 51-49 majority in the House. Senator John McCain (R-Ariz.) Left for cancer treatment, and should not return. This means that even with Vice President Pence to break the tie, the GOP only has 51 votes. If a Republican senator fails, and if no Democrats vote for the candidate, Trump's choice will not be approved.
In the figure below, I added the senator who is currently the ideological median of the room, Susan Collins (R-Maine). Moderate senators like Collins have tremendous power when their party holds a slim majority, as we saw when McCain, Collins and Senator Lisa Murkowski (R-Alaska) of their party voted against the repeal from the ACA. Therefore, it's no surprise when, this weekend, Collins announced his requirements to support a Supreme Court candidate.
Courts of the present Supreme Court (and Sen. Susan Collins on a left-right ideological scale.)
Collins on the same scale as judges, I rely on a statistical model that incorporates positions that she and all other members of Congress have taken on particular cases of the Supreme Court, such as amicus briefs submitted for particular cases in court. Supreme Court cases and all congressional votes directly relevant to cases. I can then produce ideological estimates for members of Congress who are on the same scale as judges
. Based solely on ideology, Collins should theoretically vote against any more conservative candidate than Kennedy and Roberts.
Collins can still vote for an extreme Trump candidate, lest Democrats can take control of the Senate in November and arrest any Trump candidate. Or Collins may decide that she could not be re-elected if she alienates her conservative base.
But adding an extreme conservative to the court would always result in far-right decisions?
Judges often work differently than elected officials. The court has only nine people and is often closely divided. This means that often only one judge can spend the day voting contrary to his usual ideological predispositions. And of course, the judges are not re-elected, which gives them more latitude to leave their usual positions
So, although we are talking about judges in terms of their ideological views, we should keep in mind that they have incentives and a record of ideological and partisan expectations.
[The Supreme Court’s ‘travel ban’ decision is what you’d expect if this were a normal presidency]
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