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Erwin Chemerinsky & Joan Biskupic on Donald Trump & the Supreme Court

Dean Chemerinsky and Joan Biskupic

UCI Law Dean Erwin Chemerinsky and Joan Biskupic, Visiting Professor at UCI Law and CNN legal analyst, discuss the uncertainty surrounding the Supreme Court as Trump’s inauguration approaches, including potential replacements of Justice Scalia, Trump’s nomination of solicitor general and the future of abortion, affirmative action and marriage equality.

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Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks

[Erwin Chemerinsky] I’m Erwin Chemerinsky, the Dean of the Law School at the University of California, Irvine. I'm here with Joan Biskupic who's the editor in charge of legal affairs for Reuters on leave this year and a correspondent for CNN and I think most important, a visiting professor of law here University California, Irvine School of Law. On February 13, Justice Antonin Scalia passed away. After November 8, we know that Chief Judge Merrick Garland isn't going to ever occupy his seat on the Supreme Court. We're waiting to hear who President-elect Donald Trump is going to pick to replace Justice Scalia. So I think the obvious place to begin the conversation is: what's replacing Justice Scalia with another Republican nominee on the court likely to mean?

[Joan Biskupic] There will be lots of variation Erwin, and it's good to be here with you discuss this momentous time. You know when we had the nomination of Merrick Garland pending, it was so clear to see the difference between a Republican Scalia, conservative, and someone, a Democratic appointee like Merrick Garland. And some people might think there might not be too much difference with this new appointee of Republican Donald Trump. But I think there could be because Justice Scalia was so distinctive in his approach to the law. Sure he was already conservative offering the court the fifth vote against abortion rights, against affirmative action in cases, also to establish a right to individual gun ownership. He was somebody who tipped this court conservative in very meaningful ways but he was more than that. He became a real standard bearer for originalism, a very conservative approach to the constitution, saying it should be interpreted the way the framers in the 18th Century wanted it. But then there were some other ways that he broke away from traditional conservatism. For example, he formed an alliance with liberal justices on certain criminal cases to enhance a defendant's ability to confront witnesses against him and to give greater protection for the right to juries so in some of those cases he was he big conservative one. He was an important standard-bearer for the right wing and that kind of thing will probably continue with the fifth conservative justice. I did mention abortion rights and that he was somebody who was very much against them but he did not prevail most recently in that because of Anthony Kennedy, a conservative who would go over with the justices on the liberal side. So in many cases, Erwin, it will be a wash but we don't know. All conservatives are not created equal and Donald Trump has put out a list of 21 individuals. It will depend on who is chosen and what variations of conservatism that person subscribes to.

[EC] So if I understand what you're saying and I certainly agree, replacing Justice Scalia with another conservative to a large extent restores the ideological balance of the court, what was before February 13. It's possible that who President-elect Trump picks could be more conservative than Justice Scalia in some areas. You mention the confrontation clause of the Sixth Amendment, the right to jury trial the Sixth Amendment. Much in the news in the last week is that Justice Scalia was the fifth vote to hold that flag burning is protected by the First Amendment. Justice Scalia was a consistent vote against constitutional limits on punitive damages. So you could be a conservative in all the areas where Justice Scalia was conservative and somebody more conservative in these areas and that's certainly possible. I think it's also important to note from the more liberal perspective the loss in terms of opportunity. Had Justice Scalia been replaced by Merrick Garland or another Democratic nominee, they then could have been five votes to reconsider Citizens United with regard to campaign finance. There could have been five votes to reconsider District Columbia v. Heller that you allude to with regard to the Second Amendment but now that opportunity is gone. Now we really will in most areas, move back to where we were before February 13. What if president-elect Trump picks among the most conservative on that list of 21? Somebody like William Pryor from the Eleventh Circuit who has said abortion rights an abomination and that's a quote who seems to be every bit as conservative as Scalia or more so. There's even a rumor circulating the Ted Cruz could be somebody who would be picked and that might be a politically astute move by Donald Trump that would take a rival for 2020, a critic out of that possibility. What do the Democrats do then?

[JB] Well I think the Democrats will have to assess what kind of conservative is sitting before them. Is it going to be someone who will be more in the mold of Scalia? And for example on the far the right Clarence Thomas and Samuel Alito or would it be someone more like Anthony Kennedy who established a key – who was a key vote for gay marriage and other gay rights and as I said earlier was somebody who tipped the court enough to preserve abortion rights overall. So that's the first thing, is the Democrats will have to figure out and I don't think that who they have and I don't think that's an easy task that's why the hearings in the review process will be so important. I think if President-elect Donald Trump puts up someone like Judge Pryor, I think you're going to see a battle royale. If he goes with someone who possibly, whose record is not as known or who appears more moderate there probably will be serious review maybe even some delay in a confirmation process but ultimately approval.

[EC] The one place I think I might disagree is I think if the Democrats want to block somebody they can't wait till after the hearings to do so where either party has been successful in blocking somebody it's because they set out that position from the very beginning. It was the moment that Robert Bork got nominated that Edward Kennedy said in a very famous speech he would return us back to – back alley abortions and step back progress. It was from the moment that Justice Scalia died that the Republicans in the Senate said we're not going to hold hearings we’re not going to vote on anybody. I compare that to Clarence Thomas where the Democrats didn't come out nearly so early and they weren't able to get the votes. Let me focus on your comment though of the battle royale with the Democrats filibuster. There were 48 votes against Clarence Thomas and they didn't filibuster. There were 42 votes against him and Alito and they didn't filibuster. Will they filibuster now especially having seen how the Republicans treated Garland? Or, are they afraid that if they filibuster, the Senate Republicans which change the rules to eliminate the filibuster as the Democrats did for lower federal judges and Cabinet officials. Assume it's the most conservative, assume it’s William Pryor. What does battle royal mean in that context?

[JB] I think in that case, the Democrats seriously consider a filibuster and I do agree with you actually that they have to lay the groundwork early. Both sides are going to consider this a major battle and you can't just wait till the end and I agree with you that he who hesitates is lost and I think that the Democrats right now are preparing binders on these individuals the same way Donald Trump's people are to figure out what's worth fighting and what's not. And what is the public persona and battle that will be waged when President Obama chose Merrick Garland? He chose someone who is a moderate, who had a sterling reputation and who he thought would get consensus. But Merrick Garland’s name simply did not energize the public and did not put pressure on Republican senators to hold a vote. He was named by President Obama on March 16 and here we are at the end of December without any kind of action and with no real political consequences for the Republicans who stalled. So I think, Erwin, that a lot will depend on whether that – how the public responds to the individual who is nominated.

[EC] And that of course is likely to depend on how each political party presents the nominee and there's no way to know without having in mind who that person is. I think with regard to someone like a William Pryor or Ted Cruz, the Democrats will come out right from the beginning and say this is somebody at the far right. And the underlying question then is, and there's no way to know we're speaking on December 5. Is Donald Trump going to pick somebody like he's done for Attorney General in Jeff Sessions? Or has now done for housing or development with Ben Carson picking somebody who really please the right and often Republican presidents have wanted to give judicial nominations to the right. Or is he going to pick somebody who's much less well known from his list of 21, people on that list we've never heard of and make it much harder for the Democrats to have an opposition. And it's all in the context too that I think any Republican president would have the motto: no more David Souter's, not wanting to pick somebody who could turn out to be a liberal, no more Anthony Kennedys.

[JB] Well I think that President-elect Trump can actually accomplish both. He can pick someone who isn't well known to the public but who advocates in the Federalist Society and the Heritage Foundation know to be consistent conservatives. For example, the names of Michigan Supreme Court Justice Joan Larsen and Seventh Circuit Justice Diane Sykes and Tenth Circuit judge Neil Gorsuch aren't well known to the public but those are people who have been embraced by many on the right as potential successors to Justice Scalia. And in fact, the list of 21 that Donald Trump put out as a presidential campaign or was provided by those people. So I think that he could have it both ways frankly.

[EC] And I think those three names would be ones that would please the right, you know, be harder for Democrats to mobilize against – compared to prior because at least at this point we've heard less of the inflammatory statements from those individuals than we have from say a prior, obviously from Cruz. But I know all three of them and they're all very conservative individuals. What about future vacancies as we've been focusing on the vacancy caused by Justice Scalia’s death. Since 1960, 78 years old is the average age which Supreme Court justice left the bench. There's three justices who are 78 or older. Since you were the maven with regard to birth dates, I want to be sure that we got it right. But Ruth Bader Ginsburg turned 83 on March 16, Anthony Kennedy turns 80 on July 23 and Stephen Breyer turns 78 on August 15. What happens if one of those three Justice leave the court? And I guess none of us can know how likely is that all three of them can remain into the end of the Trump presidency.

[JB] That's right. Ruth Bader Ginsburg will turn 84 on March 15 and she's…

[EC] You’re never wrong by a day.

[JB] I know I hate to do that to Erwin but you know I've got that memory for dates but you're exactly right about her age. She's about to turn 84, Kennedy is about to turn 81 next summer, and Stephen Breyer is 79. But who knows in terms of the health? Now, Justice John Paul Stevens made it to age 90 and Ruth Bader Ginsburg has told me that she's aspiring to that also but who knows. Who knows. You know so many people were caught off guard when the 79 year old Antonin Scalia died on February 13 and we just can't predict what's going to happen. But your point is well taken because all Donald Trump needs is another conservative to have a cushion for the most far right kind of rulings. And he has said publicly that he would like to see abortion rights overturned and he's not going to be able to do that if he just has five conservatives on the court he'll need a sixth.

[EC] If Donald Trump gets to replace Ginsburg or Kennedy or Breyer are there five votes to overrule Roe v. Wade?

[JB] There would appear just on paper given where Chief Justice John Roberts has been, where Samuel Alito has been, and Clarence Thomas. But when justices get to that key moment, sometimes they flinch and Roe v. Wade has been with America since 1972. It is so entrenched in society that I have always believed that the Republicans on the Supreme Court and Republicans who rule the country who say they oppose abortion rights really wouldn't want it overturned because it would so change society and it would give the Democrats the best political tool to build up their party again.

[EC] I'm more pessimistic than you are on this. I think there are certain issues which John Roberts and Clarence Thomas and Samuel Alito are true believers, and I think abortion, affirmative action, marriage equality are among them. You only have to read Robert's dissent in the marriage and equality case: Obergefell v. Hodges. And I understand he read the dissent from the bench which is the first time he’s read a dissent from the bench to see how deeply he cares about that issue. I think affirmative action is that way. It’s reflected in an opinion he wrote in parents involved in different schools and I think abortion is that way for Roberts. And I have no doubt relative to Thomas and Alito they'd be votes. So those three plus two Trump nominees, assuming there are two Trump nominees. I think our five votes to overrule Roe, allowing affirmative action, maybe even overall marriage equality. Hopefully he won't see. One of the other things got almost no media attention that may be worth talking about now is the Solicitor General. The Solicitor General is such an important position in terms of influence in the Supreme Court. Do you have any sense of what is likely to mean to have a Trump Solicitor General?

[JB] Well one thing we could do is look back and see when Ronald Reagan came in, in 1981 and tried to transform a lot of the law with his Solicitor General. First man by the name of Rex Lee and then Charles Fried urging them to take very hard line conservative positions against abortion rights, against affirmative action. And at one point Rex Lee who was his first Solicitor General even bristled at what the Reagan Administration wanted him to do before the justices as the administration's top lawyer before the court and said I'm the Solicitor General not the pamphleteer general. So, there can be a lot of tension between a president and his main representative before the justices because that's where a lot of the arguments on these key issues are made. There are several names in the mix as I understand it and we've already seen his choices for Attorney General be far to the right. We saw his choice for White House Counsel, a man by the name of Don McGahn, also be a strong conservative and longtime Trump lawyer. So I think we will also see somebody who embraces the kind of conservatism that we've come to identify with Donald Trump.

[EC] It will also be used to see if he picks the Solicitor General who has the respect of the justices. The thing about Rex Lee or Charles Fried or Ted Olson who was the Bush Solicitor General. Those all were individuals with impeccable credentials, and who certainly would have the respect of the justices. Will Donald Trump pick a conservative who has great experience for the Supreme Court or will that not be? Will it be much more of a political appointee?

[JB] I think he's looking at individuals who have argued many times before the court. The kinds of names that have been circulating are people who the justices know and would probably trust frankly in some cases. But the question then becomes what kinds of positions will those individuals be asserting on behalf of a Trump Administration, and will they go so far as what you just predicted that he would push for Roe v. Wade from 1973 to be completely overturned.

[EC] Which of course the Reagan and first Bush Administration did enter briefs to the court and in fact it was John Roberts as Deputy Solicitor General who played a role with regard to the brief and Planned Parenthood v. Casey.

[JB] That's right.

[EC] And so, it would be interesting to see how far to the right the Solicitor General is going to be and what it might mean for some of the cases on the docket for this term? I think of a case Gloucester County v. GG which is going to be a high profile case. This is the term involving whether or not with regard to transgender bathrooms. The discrimination on gender identity is a form of sex discrimination under Title IX of the Civil Rights Act. The Obama Administration has taken the positions with the Justice Department as the Department of Education that discriminating transgender students is gender discrimination. Will the Trump Administration come in and take a very different position after January 20?

[JB] Possibly. I would think so. I would think the Trump Administration is going to take different positions in many areas and I think that's why it's important to recall that the Solicitor General of the United States has often been referred to as the 10th justice for good reason because that's a very forceful place to make new arguments. Now, the position that the Obama Administration was taking relative to the transgender bathrooms arose from a Department of Education policy. So, what Donald Trump would have to do is get his administration to change the policy. That's one approach which would essentially make the case go away because then it wouldn't – there’d be nothing for the challengers to be opposing because the administration would have stopped it. But we're going to see that in the area of immigration also. We're likely to see it in provisions of the Affordable Care Act. For example, regarding the mandate on employers to provide birth control coverage for their employees. So there are many areas where Donald Trump will be affecting what happens at the Supreme Court even before a case is there or while a case is pending but in the administrative realm.

[EC] I think that it's a great point and it's also worth thinking about this term of the court as we're speaking on December 5. At least when I checked this morning, they've not yet released a January argument calendar which at least by my recollection, is unusual to be in early December we don't know January arguments. There were three cases where review was granted in early January 2016 that have not yet been scheduled for argument. One involves the Takings Clause Murr v. Wisconsin, one involves whether or not a state can deny aid to parochial schools that it gives to public schools and secular schools. The Trinity Lutheran of Columbia Missouri v. Poly case. And one involves an issue of federal court procedure Microsoft v. Baker. My instinct is they've been waiting to schedule those cases with the hope that there’d be a ninth justice. What are they going to do now when it doesn't seem like we're going to the ninth justice at all, maybe this time at least not till as early as I think April arguments?

[JB] Well that's a real quandary and I'm glad that you noted when those cases were granted cert and it was in January 2016 before Justice Scalia passed away and clearly given what those cases were all about he gave the court the fourth vote to say we want to hear these. And without him there, and without a clear cut resolution and majority either way, I think there is – there's a bit of a buyer's remorse on the part of the court. And they have a couple options: they can – they could dismiss the cases as improvidently granted or they could just keep waiting and hold it over argument in the future.

[EC] It's also worth noting that the docket at this point seems very small for this term. It's hard to do an exact count because of cases sometimes being consolidated. By my unofficial count, I get 49 cases on the docket this term.

Last year they decided 63, which I think is the lowest since like 1932. The year before that it was 66; the year before that it was 73 cases. By my count, they have only three more conferences in which they could realistically take cases to be heard this term. So it also seems having only eight justices is really having an effect on how many cases they're taking.

[JB] This is a term that for all measures will have a little asterisk attached to it, only eight justices.

[EC] And of course, there's also the real possibility of deadlock in a number of the cases that have been argued. Certainly having read the transcript of oral arguments in many of the cases, it seems there could be many, word is 4-4, which means the lower court is affirmed by an evenly divided court. Or, they could do what you suggested, when there’s a split 4 to 4, put the case over for re-argument next term assuming there’s a ninth justice.

[JB] We saw them in many cases last term decide issues as narrowly as possible. Chief Justice John Roberts would prefer not to have 4-4 deadlocks but there's only so much he can do and some of the others can do to reach a resolution. And I think that again, this is a term that will be so unlike any other because it was essentially an eight justice court.

[EC] So if there's any theme to our conversation, I think it's about uncertainty. It's the uncertainty of who's going to replace Justice Scalia and how the Democrats are going respond to that nomination. It's a longer term uncertainty about whether or not there's going to be an additional vacancy for President-elect Trump. We’re uncertain at this moment of who's going to be the Solicitor General. We’re uncertain even as to what's going to happen to a lot of the cases on the docket this term or what the docket is going to look like for this term. So I guess my hope is that we can do this again after Justice Scalia's replacement is picked and after we have a better sense of the docket and be able to talk about it with a lot more information. But the uncertainty we have is the information everyone in society has right now.

[JB] Yes, watch this space.

[EC] Thank you so much.

[JB] Thanks Erwin.

[Narrator] Thank you for joining us at UCI Law Talks. Produced at the University of California, Irvine School of Law.

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