What Would Clinton Win Mean for SCOTUS?

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By Kimberly Strawbridge Robinson

Aug. 9 — A left-leaning court with at least one appointment from potential President Hillary Clinton would mean a big shift in areas of the law such as voting rights and gun control, but panelists making predictions at the American Bar Association annual meeting doubted the new court would overturn major precedents.

Professors speculated about the future of the court Aug. 5 in light of recent polls putting Clinton ahead of her Republication rival Donald Trump by as many as 15 points.

If Clinton wins and fills the vacancy left by the Feb. 13 death of Justice Antonin Scalia, it will be the first time in more than 45 years that a majority of the justices will be appointed by a Democrat, Stanford Law professor Pamela Karlan said at the panel, “The Roberts Court 2015–2016: A Tragic Death, Its Impact, and the Future of the Roberts Court.”

But Karlan and her co-panelist Vikram David Amar, of the University of Illinois College of Law, said the new left-leaning court is unlikely to overturn recent precedent outright.

From voting rights to gun control to campaign finance, the new court will probably expand or restrict rights under the court's existing legal framework, they said.

Go Ahead for Garland

Both Karlan and Amar predicted that President Obama’s Supreme Court nominee, Merrick Garland, will eventually get on the high court if Clinton is victorious in November.

While Karlan thought it extremely unlikely that Garland will be confirmed during a lame duck session, she thought it probable that Clinton will re-nominate the now chief judge of the U.S. Court of Appeals for the District of Columbia.

Others, including Amar, think a lame duck confirmation is still possible.

Either way, it will mark the first time since May 1969 that five justices on the court were appointed by a Democrat, Karlan said.

Plenty of Room

But Karlan and Amar said the new court is unlikely to outright overrule some of the court’s more controversial precedents.

For example, the court is unlikely to overturn its 2008 landmark Second Amendment case Dist. of Columbia v. Heller, 554 U.S. 570 (2008), Karlan said.

Heller found that the Second Amendment protects the right of individuals to possess a firearm for self-defense.

But while Heller struck down Washington's restrictive handgun laws, it still leaves plenty of room for reasonable gun regulations, Karlan said.

A left-leaning Supreme Court is likely to take advantage of that room, rather than explicitly overrule Heller, she said.

Still Big Shift

The court will similarly not overrule controversial decisions on voting rights and campaign finance, though there is still likely to be a big shift in the law, Karlan said.

For example, the new court likely won't overturn its 2013 decision striking down part of the Voting Rights Act, Shelby County v. Holder, 81 U.S.L.W. 4572, 2013 BL 167707 (U.S. June 25, 2013) (82 U.S.L.W. 15, 7/2/13), she said.

But the new court is likely to take an expansive view of voting rights, Karlan said.

Instead of overruling Shelby County, the court will try to put teeth into VRA Section 2, which was untouched by the Supreme Court's Shelby County decision, she said.

Additionally, the court probably won't overrule its 2010 campaign finance decision Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010), Amar said.

While Citizens United struck down limits on campaign spending for certain organizations, the court will likely uphold future laws regarding campaign disclosure requirements and public finance, he said.

No Change Is Change

In a separate ABA panel on Aug. 6, “The 2016 Presidential Election, U.S. Supreme Court Nominations, and the Current Supreme Court Vacancy,” Karlan noted that the biggest changes in the new court should Clinton be elected might be no changes at all.

There were many areas of the law where court-watchers expected that the law was on the verge of changing before Scalia's death, Karlan said.

She pointed to last term's public union case Friedrichs v. Cal. Teachers Ass'n, 84 U.S.L.W. 4159, 2016 BL 96297 (U.S. March 29, 2016) (84 U.S.L.W. 1475, 4/7/16) (84 U.S.L.W. 1417, 3/31/16).

Friedrichs represented a decade-long attempt to roll back financing for public unions, and it looked like those efforts would be successful following oral argument (84 U.S.L.W. 948, 1/14/16), Karlan said.

But after Scalia's passing, the court split 4-4 in Friedrichs, maintaining the status quo.

In areas of the law previously targeted by conservatives, no change will be the big change on a left-leaning court, Karlan said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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