When Republicans say, as Senate Majority Leader Mitch McConnell (R-KY) did shortly after news of Justice Antonin Scalia’s death broke, that the vacancy on the Supreme Court “should not be filled until we have a new President,” they are effectively saying that we are better off having Donald Trump select the next justice than Barack Obama. It’s unlikely, to say the least, that McConnell’s real concern is that he would rather that Democrats Hillary Clinton or Bernie Sanders fill the seat, and Donald Trump is the current frontrunner for the GOP nomination. If the polls are right, Trump is only a few days away from crushing victories in South Carolina and Nevada.
So let’s say that Trump wins, and that Republicans carry out McConnell’s threat to confirm no one, no matter who that person may be. As it turns out, Trump has painted a very vivid picture of what sort of justices he would appoint if given then chance to do so — and it looks a whole lot like what one would expect from some of the most conservative factions within the GOP.
Last December, Trump named his favorite member of the Supreme Court, Justice Clarence Thomas. That alone suggests that Trump’s nominees could immediately become some of the most conservative members of the bench in decades. In addition to joining famous conservative decisions such as Citizens United or the Court’s decision to dismantle much of the Voting Rights Act, Thomas embraces an interpretation of the Constitution that led past justices to strike down child labor laws.
More recently, in a statement earlier this week, Trump disclosed two judges that he believes would “best represent the conservative values we need to protect: William “Bill” Pryor Jr. and Diane Sykes.”
Judge William Pryor was what is euphemistically referred to as a “controversial nominee” when President George W. Bush announced his nomination to the United States Court of Appeals for the Eleventh Circuit. His opponents pointed to statements Pryor made as Alabama Attorney General labeling Roe v. Wade and the Supreme Court’s landmark criminal justice decision in Miranda v. Arizona as “the worst examples of judicial activism.” Pryor also described Roe as creating “a constitutional right to murder an unborn child.” Senate Democrats initially filibustered Pryor’s nomination, but they eventually capitulated to a Republican threat to eliminate the filibuster unless Pryor was confirmed. (Eight years later, Democrats eliminated the filibuster themselves for lower court nominations.)
Since joining the bench, Pryor did reach at least one surprising decision — he joined a 2011 opinion holding that “a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity.” For the most part, however, Pryor has behaved as a fairly orthodox conservative since his elevation to the court.
In Common Cause/Georgia v. Billups, for example, Pryor upheld a Georgia voter ID law — a common method of voter suppression. According to one study, strict voter ID laws “could be expected to depress Latino turnout by 9.3 points, Black turnout by 8.6 points, and Asian American turnout by 12.5 points.” Similarly, “Democratic turnout drops by an estimated 8.8 percentage points in general elections when strict photo identification laws are in place,” as compared to 3.6 points for Republicans. Though the laws are often justified a means to address in person voter fraud, such fraud is so uncommon that, by one measure, a voter is 39 times more likely to be struck by lightning than commit voter fraud at the polls.
Though much of Pryor’s analysis tracked a Supreme Court opinion rejecting a similar challenge to a voter ID law, his opinion also contains language suggesting that challengers must identify specific individuals who are unable to jump through the hoops such laws erect between voters and the polls, but who are nonetheless visible enough that they can individually be identified by civil rights attorneys. That may prove to be an impossible task, as the voters most impacted by such laws are, by their very nature, likely to live at the margins of society.
Similarly, on literally the same day that the Supreme Court implied that a framework — which the Obama administration currently uses to accommodate religious objectors while also providing birth control coverage to working women — is legal, Pryor handed down an opinion arguing that this framework is illegal. Notably, the fate of this framework is currently pending before the Supreme Court, so Pryor could potentially strip many woman of health plans covering contraception if Trump promoted him..
Judge Diane Sykes is, if anything, even more conservative than Pryor. Like Pryor, Sykes, who currently sits on the Seventh Circuit, backed a voter ID law. She also wrote a decision expanding religious objectors’ ability to limit their employees’ access to birth control coverage that SCOTUSBlog’s Lyle Denniston described as “the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law.”
Notably, Trump isn’t the only candidate to suggest Sykes as a potential Supreme Court nominee. Wisconsin Gov. Scott Walker did the same in 2013.
Sykes’ most revealing opinion, however, may be her argument in Christian Legal Society v. Walker that anti-gay groups have a constitutional right to continue receiving government subsidies even if they engage in discrimination. Indeed, Sykes’ opinion went so far as to deny that the anti-gay organization at issue in this case engaged in prohibited discrimination at all, because it made an exception to its discriminatory policies for gay people who refrain entirely from having sex:
SIU also claims CLS violated the university’s Affirmative Action/EEO policy, which states that SIU will “provide equal employment and education opportunities for all qualified persons without regard to[, among other things,] sexual orientation.” We are skeptical that CLS violated this policy. CLS requires its members and officers to adhere to and conduct themselves in accordance with a belief system regarding standards of sexual conduct, but its membership requirements do not exclude members on the basis of sexual orientation. CLS’s statement of faith specifies, among other things, a belief in the sinfulness of “all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.”
In any event, four years after Sykes handed down her decision in Walker, the Supreme Court rejected her approach in a similar case, Christian Legal Society v. Martinez. Nevertheless, the question of whether businesses and employers have a legal right to discriminate against LGBT people in many contexts remains an open question under the Supreme Court’s current precedents. The fact that Sykes was willing to say that anti-gay groups have a right to government subsidies suggests that she’d have no problem reaching the conclusion that they are free to fire LGBT employees because of their status or refuse to serve LGBT customers.
So, if Trump became president, he’s clearly indicated that he would draw from the most conservative segments of the judiciary to fill vacancies on the Supreme Court. In addition to the open seat left by Scalia, there are three current justices who are quite elderly. The next president could fill as many as four seats.