Analysis: Three questions about the Supreme Court’s future

WASHINGTON – Since Donald Trump won the presidential election, I have been consistently asked three questions about the Supreme Court. Two seem obvious, and the third, at least to me, was surprising:

Can President Barack Obama simply appoint Judge Merrick Garland to the court since the Senate has refused, for 250 days and counting, to act on the nomination?

How likely is it that the court’s jurisprudence on abortion will change now that Trump will be choosing justices?

And can Trump nominate his sister, a judge on the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, to the high court?

Garland’s fate

The first question is the most controversial. Even those who insist that Obama has the power to force the issue on Garland’s nomination agree it is unlikely that he would try.

The Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court, and all other Officers of the United States.”

The Republican-led Senate, of course, has refused to even hold a hearing on Garland’s nomination, much less consent to his appointment. The Republicans’ position since Justice Antonin Scalia’s death in February has been that the next president should choose Scalia’s replacement.

In the past, it has been generally assumed that the Senate can kill judicial nominations simply by refusing to act upon them until the president leaves office. Two current members of the court – John G. Roberts Jr. and Elena Kagan – had their earlier nominations to lower courts end without the Senate taking votes.

But millions have signed petitions urging another view – that Obama gave the Senate a chance to advise him on Garland’s nomination, and because lawmakers did not vote one way or the other, the president is free to move on to the “shall appoint” part of the Appointments Clause.

Abortion

In a post-election interview on CBS’ “60 Minutes,” Trump repeated his pledge to nominate anti-abortion justices who could help overturn Roe v. Wade, the 1973 decision that said a woman has a constitutional right to seek an abortion.

If that happened, Trump said, abortion decisions would go back to the states, and some could ban it. Asked whether he was comfortable with the idea that women might have to go to other states to end their pregnancies, Trump replied: “Well, we’ll see what happens. It’s got a long way to go.”

Almost everyone can agree on that.

It became clear at the end of the court’s last term that there is a majority on the court to maintain Roe and the line of subsequent cases that have expounded on that constitutional right. The court has acknowledged the state’s interest in protecting fetal life but also said a state’s restrictions cannot put an “undue burden” on a woman’s right.

It is far from clear that even a majority of those who disagree with Roe would move quickly to dismantle it. But the possibility is motivating both sides of the divisive issue.

Judge Maryanne Trump Barry

Trump himself has mused about nominating his sister to the Supreme Court, although he has said it is unlikely.

“I would love to, but I think she would be the one to say, ‘No way, no way,’ ” he said in a Fox News interview last year.

Judicial ethics experts said federal laws would not prohibit Trump from nominating Barry, who was elevated to the appeals court by President Bill Clinton in 1999.

But the National Review has called Barry a “pro-abortion extremist judge.”

Barry, who served on the appeals court with Justice Samuel Alito, was part of a panel that struck down a New Jersey ban on the later-term abortion procedure critics call “partial-birth abortion.”