The Supreme Court of the United States


Yesterday, in true Reality TV style, Donald Trump announced his nominee for the US Supreme Court. It will be Neil Gorsuch, a staunch Conservative. The pick was announced via a live broadcast from the White House, with two finalists arriving in Washington to await the decision. Apparently Trump thinks that being President is very similar in many ways to presenting The Apprentice.


So what exactly is The Supreme Court? And what happens now that Trump has made his pick? Do be warned: A lot of this post is about lawyers, so I’ll forgive you for occasionally zoning out.


Let’s start with the Supreme Court itself and a brief foray into the American system of government, which is divided into three ‘branches’: The Executive branch (The President), the Legislative branch (Congress) and the Judicial branch (the Supreme Court). Each ‘branch’ is designed to act as a check-and-balance against the others, to prevent any one ‘branch’ from becoming too powerful. Each ‘branch’ has specific functions. The function of the Supreme Court is to make sure that all laws and decisions made by the other ‘branches’ are legal according to the US Constitution, meaning the Supreme Court’s job is really to ‘interpret’ the Constitution. However, as the Supreme Court is the highest Court in the land, it only handles the most important decisions. This means that Supreme Court decisions usually have huge consequences. Supreme Court decisions have led to, amongst many other things, desegregation of the US school system (Brown vs Board of Education), the legalisation of abortion and gay marriage in America (Roe vs Wade, Obergefell vs Hodges) and allowing corporations to spend unlimited amounts of money in US elections (Citizens United vs the Federal Electoral Commission).


The Supreme Court consists of nine judges, or ‘Justices’ to give them their official title. It has to be an uneven number because decisions are made by majority. The Justices themselves are usually described as either ‘Conservatives’ or ‘Liberals’. To give an example of what this might mean in real terms: if the Supreme Court were debating a case relating to gun rights, a ‘Conservative’ Justice might argue that the 2nd Amendment, granting all Americans the right to ‘keep and bear arms’, is clearly written and that therefore American citizens have the right to own whatever and however many guns they want. Bazookas and nuclear weapons included. A ‘Liberal’ Justice might argue instead that the vast changes in technology since the Constitution was written should be taken into account, and therefore that the 2nd Amendment doesn’t give Americans the right to own, say, machine-guns. Or bazookas. Or nuclear weapons. This is obviously a simplified and (slightly) exaggerated example, but it should give you a general idea. The Court is normally pretty evenly split between Conservative and Liberal Justices, with a majority of one or two either way.


Justices serve on the Supreme Court for life. The only way they can leave their position is by resigning or dying (theoretically they can also be ‘impeached’ for inappropriate or illegal behavior, but this is exceptionally rare. In fact, in the whole history of the Supreme Court, only one Justice has ever been impeached and even he was not forced to step down). When one of these things happens, a vacancy appears on the Court. It is the President’s job to pick a nominee to fill that vacancy. The Senate will then hold hearings and vote on whether or not to confirm that nominee. This means the President can’t just nominate anyone to the Supreme Court. They have to be someone with solid credentials, otherwise there’s a risk that the Senate will reject the nomination. The most infamous recent example of this was George W. Bush’s nomination of Harriet Miers, a lawyer with whom the President had a close personal and professional relationship. As she had no previous experience as a judge, her nomination stank of favouritism and she was forced to withdraw.


Obviously, a Conservative President wants the Supreme Court to have a Conservative majority, and vice versa for a Liberal President. Picking a new Supreme Court Justice is one of the most important and consequential decisions a President can make, as they have the rare opportunity to shift the balance of the Court for a generation. The death of Justice Scalia in 2016, a ‘Conservative’, has left a vacancy on the Court. Although President Obama attempted to fill it himself by nominating Merrick Garland, a ‘Liberal’, the Republican-controlled Senate blocked him by refusing to hold confirmation hearings. They were hoping that a Republican would win the Presidential election and be able to pick a ‘Conservative’ instead. Their gamble has paid off, ‘bigly’, as The Donald himself might say.


So, onto President Trump’s pick, Neil Gorsuch. Who is he? And what happens next? Well, it seems like Gorsuch is a pretty traditional Conservative. He believes in strong 2nd Amendment gun rights, has written a book expressing his opposition to Euthanasia (or ‘Assisted Dying’) and is opposed to religious institutions being required to provide access to contraception. He has solid legal credentials and would have been a likely pick for any Republican President.


The next step is for his nomination to be confirmed by the US Senate. That means Gorsuch will appear before the Senate and can look forward to being relentlessly grilled about his legal and personal opinions, work history, previous statements etcetera. The Senate will then vote on whether they want him on the Supreme Court or not. In order to avoid the possibility of a ‘filibuster’ (which means his appointment to the Court being blocked), he needs 60 votes out of 100. This is where it gets a bit tricky, as there are currently only 52 Republican Senators. All 52 will almost certainly vote in favour of Gorsuch, but they then need 8 Democrats to join with them. In normal times, that probably wouldn’t be too much of an issue, as Gorsuch seems to be a relatively traditional nominee. However, the Democratic Party is currently under huge pressure to resist anything and everything President Trump does. It could get messy.


Another point to remember is that Trump may well get the chance to make more Supreme Court selections during his four-year term. Two current Justices are over the age of 80 and another is 78. Two of the three oldest Justices are also ‘Liberals’ (Ruth Bader Ginsburg and Stephen Breyer). If both were to resign or die, Trump would be able to give the ‘Conservatives’ a 7-2 majority.


So if you liked the idea of American women continuing to have access to legal abortions, it might be time to start worrying.


One comment

  1. Good article Barney,thought provoking and informative.Judging by the very early days of the Trump presidency,those of a liberal opinion will have their work cut out for the next few years keeping ‘The Apprentice’ president on the straight and narrow.I think it likely that given time people will see through Trump’s fakery-the problem as ever(and this applies in the UK too) is the weakness of opposition.


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