For many of us, the most important issue at stake in last month’s election was the Supreme Court, where judges who primarily attempt to follow the Constitution’s text are currently outnumbered, 5-3, by judges who make other concerns the primary basis of their decisionmaking. This question has major policy implications, since textualism is totally incompatible with several key Supreme Court precedents made during the recent decades of anti-textualist supremacy — most notably the abortion rights guaranteed by Planned Parenthood v. Casey.
Once Trump enters office, he has promised to fill the late Justice Antonin Scalia’s chair with a fourth textualist, making the balance 5-4. Trump has also promised to ensure that any other vacancies are filled by constitutional textualists. (His opponent, Mrs. Clinton, promised litmus tests to ensure the exact opposite.) Whether Trump will keep that promise is a matter of some debate, which this post will not attempt to settle.
The anti-textualists on today’s Court are Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. If one of them leaves the Court, Trump will have at least the opportunity to appoint a textualist justice as a replacement. If he took that opportunity, the textualists would gain a 5-4 majority on the Supreme Court, giving them their first majority in at least several decades. (If a textualist like Clarence Thomas leaves the Court, and Trump replaces him with another textualist, it would not change the balance of power.) We can use the Social Security Actuarial Life Table to compute the approximate probability that an anti-textualist will vacate the Court during President Trump’s administration.
There are reasons to think this approximation is both too pessimistic and too optimistic. On the one hand, the Supreme Court justices have excellent health care, and are therefore possibly less likely to die than the average American as measured by the Social Security Administration. On the other hand, death is not the only way a Supreme Court justice can leave the Court — resignation near the end of one’s life is fairly common, and the SSA Life Table only captures the odds of death, not resignation. These figures should therefore be treated as ballpark estimates… which is better than nothing.
Here is the probability that President Trump will have had a chance to replace an anti-textualist on the Supreme Court by a given year, for each year of a potential eight-year administration.
|Year 1 (2016-17)||18%|
|Year 2 (2017-18)||34%|
|Year 3 (2018-19)||48%|
|Year 4 (2019-20)||60%|
|Year 5 (2020-21)||70%|
|Year 6 (2021-22)||79%|
|Year 7 (2022-23)||85%|
|Year 8 (2023-24)||90%|
Notable events on this timeline:
- Trump has a 34% chance at a court-swinging opportunity before the next federal election, the 2018 midterms. He will almost certainly be able to get any textualist nominee through the Republican Senate until then.
- There is a 60% chance that an anti-textualist will vacate the Court before the 2020 presidential election. Based on the almost impossibly difficult Senate map Democrats will face in the 2018 election, Republicans will more likely than not be able to maintain Senate control, despite the expected midterm backlash. They may even be able to expand their control, given the vulnerabilities of Heidi Heitkamp, Joe Donnelly, and Joe Manchin.
- If there is no anti-textualist vacancy by the 2020 presidential election, the future becomes difficult to predict. Incumbents are re-elected, more often than not, but Trump seems likely to be a bad president (sorry, Trump fans), and Senate Republicans face a brutal map of their own in 2020. If a Democrat wins the presidency, hopes of swinging the Court to textualism die in 2020. If Trump wins, but Republicans lose the Senate, the likelihood that a textualist can be confirmed falls dramatically. So, on balance, vacancies between 2020 and 2022 are unlikely to find a favorable environment for textualist replacements. Nevertheless, there is a 79% of a vacancy arising between today and the 2022 midterms, and, if the environment is still favorable, Trump will still have the chance to reshape the Court.
- Who knows what the country will look like by 2022? About all we can say for sure is that Trump’s ability to nominate a Supreme Court justice will certainly end by the lame-duck session of 2024, as he is term-limited out of the presidency. So it is a big question mark whether Trump will have any power to fill Supreme Court vacancies with textualists in 2022-2024. However, if he does maintain that power throughout all 8 years of his administration, there is fully a 90% chance that he will have had at least one shot by the end of Year 8.
You can check my math on this Google Sheet.
So, there you go. The odds that President Trump, during his first term in office, will have the opportunity to fundamentally redirect the judicial branch back to its primary purpose — reading, interpreting, and applying the text of the law according to its original public meaning — are, basically, 50/50. A coin toss. If Trump wins a second term, the odds of a vacancy go up, but the odds he can get a textualist replacement through the Senate go down, and it still ends up looking like a coin toss.
There have been a lot of headlines this past month about the “nightmare” of a Trump presidency. But the thing that’s going to be keeping me up at night for the next four years is that coin toss.