Reproductive Rights: An Uncertain, Ever-evolving Tale (Part II)

Trump’s power to nominate a Supreme Court justice and lower court judges is his greatest power to influence the future of reproductive policies. In a November 2016 interview for 60 Minutes, Trump said that the Supreme Court appointment is “very important” and that abortion issues are integral to his decision. Trump reiterated his views by saying, “I am pro-life. The judges will be pro-life.” Trump’s Supreme Court pick, Neil Gorsuch, holds an originalist view of the Constitution much like Scalia. Originalism assumes that the Constitution is static and believes judges should look back to reveal what the authors had intended for any law at the time of its conception. Critics of this view argue that originalist interpretation lags behind social progress and is inadequate to address the needs of a modern society far removed from the Founding Fathers. Gorsuch has not ruled on any abortion rights case. Yet, he cited his Episcopal faith in his nomination speech and wrote that “the intentional taking of human life…is always wrong” in a book about assisted suicide. His originalist view serves as a further indicator that he would most likely stand in opposition.

Trump has made his goal clear by selecting Gorsuch, but the question remains as to what the Democrats can do, if anything, to inhibit his plans. The polarized Senate exemplifies the power of super-majoritarian procedures like the filibuster to give the minority substantial power. After the death of Justice Antonin Scalia in February of 2016, President Obama nominated federal judge Merrick Garland, which many noted to be quite moderate. However, Senate Republicans refused to hold a hearing for Garland because they believed that a vacancy should not be filled during an election year. The result has been an eight-justice court for the interim period. While most assume that the vacancy will be filled in the upcoming year, the backlash against Trump’s policy preferences have left some wondering if the Senate Democrats will continue the eight-justice court by blocking Trump’s nomination.

A Democratic attempt to block Trump’s Supreme Court pick may have serious ramifications. Besides the obvious electoral costs for such action, the Democrats may tempt the Republicans to remove the filibuster for Supreme Court appointments. Under a Democrat-controlled Senate in 2013, the filibuster was removed for lower court nominations, which allows confirmations to be made by a simple majority vote. This move gave Democrats better ability to nominate more liberal judges to the federal courts. However, this could be used against them in the upcoming years as Republicans control the White House and both chambers of Congress. While some Senate Democrats have voiced their willingness to cooperate, depending on Trump’s nominations, the use of the filibuster is not out of the realm of possibilities.

At this point, the future of the Supreme Court and reproductive policies is uncertain. The fact is Republicans control the new government and have plans to appoint conservative judges to the courts. However, the extremity of court nominations and the ultimate Democratic response are unknown. Regardless, the future of reproductive rights will be impacted greatly by court decisions. Three Supreme Court justices are either in their late seventies or early eighties, which will create three more vacancies in the upcoming years. This is a pivotal period, and Supreme Court appointments will determine the direction of the highest court in the United States for years to come.