Trump's Election Raises Host Of Issues For Supreme Court

Nov 15, 2016
Originally published on November 15, 2016 4:46 pm
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ROBERT SIEGEL, HOST:

And now some questions about the incoming Trump administration - some potentially big issues before the Supreme Court and Trump's progress toward nominating a ninth Supreme Court justice. For this, I'm joined by NPR legal affairs correspondent Nina Totenberg. Hi, Nina.

NINA TOTENBERG, BYLINE: Hi, Robert.

SIEGEL: And first, I'd like you to sort out for us two apparently conflicting statements that Donald Trump made on "60 Minutes." One was about the Supreme Court and abortion.

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DONALD TRUMP: I'm pro-life. The judges will be pro-life.

SIEGEL: And as for overturning Roe v. Wade...

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TRUMP: If it ever were overturned, it would go back to the states.

SIEGEL: Meaning states could criminalize or legalize abortion. Another legal issue he was asked about - does he support same-sex marriage?

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TRUMP: It's irrelevant because it was already settled. It's law. It was settled in the Supreme Court. I mean, it's done.

SIEGEL: So, Nina, in one case, he says a Supreme Court decision ought to be overturned. In the other case, the court's decision ends the discussion. Is there anything different about those two issues in Supreme Court rulings?

TOTENBERG: No. They're both constitutional decisions.

SIEGEL: Marriage equality was taken up a lot more recently than abortion. Is there any typical bias in favor of recent rulings, as opposed to old ones?

TOTENBERG: Actually, the opposite - the longer a decision is in place, the more weight it has. And in the case of abortion, that decision has been repeatedly reaffirmed over a period of 43 years - versus the same-sex marriage decision, which is just 17 months old. And, indeed, while the court has fleshed out how far states can go in regulating abortions, it's not fleshed out how far states go in discriminating against same-sex couples on religious grounds.

SIEGEL: Now, if President Obama's nominee Merrick Garland had been confirmed, that would've made an immediate difference in the ideological makeup of the court. But that's not going to be so with this nomination, now that Trump is going to be president, whoever it ends up being, right?

TOTENBERG: Right. We get a conservative for a seat previously held by a conservative, as opposed to the centrist liberal Garland likely would have been. This, in some ways, is the dress rehearsal for the next nomination, which, if it happens, will make all the difference in the world. Two of the justices, Ruth Bader Ginsburg and Justice Anthony Kennedy, are over 80. Justice Breyer is 78.

Ginsburg and Breyer are among the court's liberals. The third, Justice Kennedy, is a generally conservative justice. But he's the author of the court's same-sex marriage decision. And he's been the deciding vote in upholding the right to abortion. So if any of those three goes, you will see dramatically more conservative rulings on these and other issues for a generation to come, at least.

SIEGEL: So how soon do you think it'll be before the incoming president announces his nominee to fill the current vacancy?

TOTENBERG: I don't expect the nomination until we have an official President Trump, until he's sworn in. He has a government that can vet candidates. He can officially give them to the FBI to do a thorough background check.

SIEGEL: And what do you know about what Donald Trump really wants in the way of a Supreme Court justice?

TOTENBERG: Well, people around Trump acknowledged that he's no Supreme Court expert. But he knows what he doesn't want. And he doesn't want surprises. And by that, he means somebody like Justice David Souter, who was appointed by the first President George Bush, and Chief Justice John Roberts, who is anathema to many conservatives because he voted to uphold the ACA.

SIEGEL: Now, during the campaign, Trump actually released lists of people who would be the kind of people he would nominate to the Supreme Court - 21 names I believe. What - who are they?

TOTENBERG: Both these lists were compiled largely by the conservative Heritage Foundation. And the names range from very conservative to very, very conservative. None is a household name. Indeed, some of the most well-known conservative judges and lawyers in the country aren't on the list. But I'm told this nominee will come from the lists.

And I would expect that the older ones and the younger ones will get knocked off. And the person will have a track record that attracted Trump and, therefore, will unattract a lot of Democrats and their constituencies.

SIEGEL: NPR's Nina Totenberg, thank you.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.