The following piece is adapted from an earlier piece profiling the same judges.
According to the National Review’s Tim Alberta, President-elect Donald Trump has settled on two finalists for the vacant seat on the Supreme Court: Judges William Pryor and Diane Sykes.
Alberta’s report should be taken with a grain of salt. It is sourced to “conversations with a host of conservative legal experts at this week’s Federalist Society convention…many of whom have had discussions with President-Elect Donald Trump’s transition team.”
Nevertheless, the claim that Pryor and Sykes are the leading contenders for the Supreme Court is quite plausible. Shortly after Justice Antonin Scalia died, creating the current vacancy on the Court, Trump named both Pryor and Sykes as potential justices — and this was before he released his list of potential justices that eventually swelled to 21 names.
So Pryor and Sykes, for whatever reason, were on Trump’s mind when he first expressed a view on the Supreme Court. It makes sense that he would return to them now that he unexpectedly finds himself in a position to name a justice.
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 devised 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, this framework reached the justices earlier this year, and they effectively split 4–4 on its legality and punted the case.
Though that case will likely become moot after the Trump administration’s rescinds the Obama administration’s contraceptive policies, Pryor would almost certainly be a fifth vote to give religious objectors an unprecedented new ability to ignore the law.
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.
By naming these two names, in other words, Trump 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 also three current justices who are quite elderly. Which means Trump could fill as many as four seats.