President Trump Is Likely to Swiftly Shape the Supreme Court and Judiciary

In early November, many eagerly anticipated the election of Hillary Clinton and a Democratic majority in the Senate which would eventually result in a liberal majority on the Supreme Court for the first time in almost 50 years. This prospect troubled senators such as Ted Cruz so much that he threatened to block any Clinton nominee to the Court, leaving it with eight justices for the foreseeable future.

Like many others, that liberal dream was shattered with the election of Donald Trump. He now has the opportunity to shape the Court and the federal judiciary itself.

There are currently more than 100 vacancies in the federal courts system. Although President Obama had nominated people to fill 59 of those vacancies, those nominations are now moot. Given the power that these judges have to make decisions on a day to day basis and the anticipated rapid pace at which they may be approved by a Republican Senate, Mr. Trump’s nominees will be in place in fairly short order.

Early in the campaign, responding to concerns by some that he might not appoint a reliable conservative to the Court, Mr. Trump made public a list of over 20 conservative judges that he would likely appoint.

Accordingly, instead of a justice who would likely reverse the Citizens United case and hold that some firearms regulations are constitutional, we will see a justice who will support the reversal of Roe v. Wade and side with the other three reliable conservative justices on the Court. And if one of the liberal justices such as Ruth Bader Ginsberg (age 83) or Stephen Breyer (age 78) steps down during Trump’s presidency, when he appoints the successor, it will mean a conservative majority for the foreseeable future.

What does this mean for business? Like its recent predecessors, the Roberts Court has been seen as business friendly. For instance, it has restricted the ability of consumers to bring class actions and, in another case, supported enforcing contract provisions requiring disputes be taken to business-friendly arbitration rather than to court. Mr. Trump’s appointments to the Supreme Court and federal courts could bring more of the same. 

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Pete Wentz

Pete Wentz, executive director of APCO’s Chicago office, provides clients with expertise in corporate reputation, crisis, financial and litigation communication and strategic planning. He also has extensive experience in higher education. Read More