Uphill Climb for Trump, Clinton to Overturn SCOTUS

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By Kimberly Strawbridge Robinson

Oct. 26 — Both Hillary Clinton and Donald Trump vowed during the final presidential debate Oct. 19 to appoint U.S. Supreme Court justices that would overturn polarizing cases.

Trump said that if he appointed the next justice, the high court would “automatically” overturn its abortion jurisprudence like Roe v. Wade, 410 U.S. 113 (1973). Clinton said she’d appoint justices that would overturn the court’s campaign finance decision, Citizens United v. FEC,558 U.S. 310 (2010).

But neither scenario is likely, court watchers told Bloomberg BNA. The Supreme Court infrequently overrules its own precedent, Ilya Shapiro, editor-in-chief of the libertarian-leaning “Cato Supreme Court Review,” Washington, told Bloomberg BNA.

Any appointee is more likely to work within the court’s current framework to expand or restrict constitutional rights, Vikram David Amar, dean of the University of Illinois College of Law, Champaign, Ill., told Bloomberg BNA.

Still, if the candidates are set on carrying out their promises, Trump has a steeper climb, Elizabeth Wydra, of the progressive think tank the Constitutional Accountability Center, Washington, told Bloomberg BNA.

Overturning at a Cost

The next president will fill the current vacancy on the court left by Justice Antonin Scalia, if the Senate doesn’t act on President Barack Obama’s nominee, Merrick Garland.

But that nominee is unlikely to be the deciding vote to overrule either the court’s abortion or campaign finance precedent.

That’s because there is a cost to overruling Supreme Court precedent, Amar said Oct. 24.

For the court, overturning previous cases can call into question the court’s credibility, he said.

The court’s actions have ramifications for the president too. Such action could put the spotlight on the court, rather than the administration’s other priorities.

Limiting Heller

But that doesn’t mean the presidential election won’t have an effect on abortion or campaign finance, Amar said.

Instead of overturning those cases, they are more likely to be narrowed and limited to their facts, Shapiro said in an Oct. 21 e-mail.

The court’s landmark gun-rights opinion, Dist. of Columbia v. Heller, 554 U.S. 570 (2008), is a good example, Amar said.

Heller was certainly a major decision in that it recognized, for the first time, that there are individual gun rights, he said.

But it left a lot of important questions about other gun regulations unanswered—like those dealing with assault weapons, trigger locks and ammunition, Amar said.

Lower courts wanting to limit gun rights have left Heller intact, but have refused to expand its reasoning beyond the “extreme” ban at issue in that case, he said.

Course Correction?

Still, if the candidates are intent on overturning the court’s abortion or campaign finance jurisprudence using nominations to the court, Clinton may have the easier task.

Citizens United was “out of line with other Supreme Court precedent,” itself overruling “prior cases that had respected the power of government to protect our democracy and limit opportunities for corruption,” Wydra said in an Oct. 24 e-mail.

“Getting rid of Citizens United would simply be course-correction,” she said.

But Amar didn’t agree.

It’s hard to write an opinion that says corporations can’t spend money on campaigns, he said. That would mean, for example, that newspapers couldn’t run an unlimited number of editorials on elections.

“As much as I hate money in politics,” it’s “easier to write a feisty dissent” in Citizens United than come out the other way, Amar said.

If Clinton appoints the next justice, however, the court would likely have the votes to uphold stronger disclosure requirements or allow more latitude for publicly financed campaigns, he said.

Don’t Have the Votes

But Amar and Wydra both agreed that overturning Roe v. Wade would be even more difficult than overturning Citizens United.

Shapiro pointed out that Roe v. Wade isn’t the controlling precedent on abortion—it’s Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

Still, there simply “are not enough votes to ‘automatically’ overrule” the court’s abortion jurisprudence, Wydra said, quoting Trump.

While there may be two justices on the court now willing to do so—Justices Clarence Thomas and Samuel A. Alito Jr.—no other justice has indicated that they’d go that far, Amar said.

Chief Justice John G. Roberts Jr. probably wouldn’t want to expand abortion rights, but given the public’s reliance on the right to an abortion, he probably wouldn’t vote to outright overturn that right either, he said.

“For decades, the Court has reaffirmed the Constitution’s protection of the right to an abortion,” Wydra said.

To overturn the court’s abortion jurisprudence, “the next appointment wouldn’t be enough,” Shapiro 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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