In 1937, it was said that a critical shift of one justice in a critical case ended the move to pack the Supreme Court by President Franklin Delano Roosevelt. It was said that it was "a shift in time saves nine." In 2024, a shift in the Senate may have had the same impact. President-elect Donald Trump's victory this week means that absent a renewal of the court-packing scheme and other extreme measures of the left, the Court will remain unchanged institutionally for at least a decade.
The expectation is that Associate Justice Clarence Thomas could use this perfect time to retire and ensure that his seat will be filled with a fellow conservative jurist. Justice Samuel Alito may also consider this a good time for a safe harbor departure. They have a couple of years before they reach the redline for nominations before the next election.
The election means that court-packing schemes are now effectively scuttled despite the support of Democratic senators like Elizabeth Warren, D-Mass., and Sheldon Whitehouse, D., R.I. Given Vice President Kamala Harris's reported support, the Supreme Court dodged one of the greatest threats to its integrity in its history.
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The impact on the law will also be pronounced. Returning the issue of abortion to the states will remain unchanged. A younger generation will grow up in a country where the voters of each state are allowed to determine what limits to place on abortions.
Likewise, gun rights and religious rights will continue to be robustly protected. The checks on the administrative state are also likely to be strengthened. Pushes for wealth taxes and other measures will likely receive an even more skeptical court.
The possible appointment of two new justices would likely give Trump a total of five to six nominees on the court. Liberals previously insisted that it was time for Justice Sonia Sotomayor to leave the Court, a campaign that I opposed. The appointment of seven of the nine justices by a single president would be unprecedented. (I expect, as with the calls to "end the filibuster" as undemocratic, the liberal campaign to push Sotomayor to retire ended around 2:30 am on Tuesday night).
Trump has shown commendable judgment in his prior nominations. All three—Gorsuch, Kavanaugh, and Barrett—are extraordinary jurists who have already created considerable legacies. I testified at Neil Gorsuch's Senate confirmation hearing and still consider him one of the most consequential and brilliant additions to the Court in decades.
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These justices were subjected to appalling treatment during their confirmation process, including attacks on Barrett for her adopting Haitian children. New Trump nominees can expect the same scorched-earth campaign from the media and the left, but they will have a reliable Senate majority for confirmation.
These justices have shown the intellect and integrity that bring credit to the Court, including each voting in key cases with their liberal colleagues when their principles demanded it. Trump can cement his legacy by continuing that legacy over the next four years with nominees of the same caliber.
In this way, the election may prove the key moment in ending one of the most threatening periods of the Court's existence. With the loss of control of the Senate, the push for new limits on the Court and calls for investigations of conservative justices will subside for now. However, the rage in the media and academia will only likely increase.
Both media and academic commentators pushed for sweeping constitutional changes, including packing the Court or curtailing its jurisdiction. Many saw the Harris-Walz administration as the vehicle for such extreme measures. Harris herself pledged to "reform" the Court.
Some liberals figures even called for the dissolution of the Court and other radical changes.
Erwin Chemerinsky, dean of the UC Berkeley law school, called for the scrapping of key constitutional elements in his "No Democracy Lasts Forever: How the Constitution Threatens the United States." In a Los Angeles Times op-ed, he described conservative justices as "partisan hacks."
In the New York Times, book critic Jennifer Szalai denounced what she calls "Constitution worship" and warned that "Americans have long assumed that the Constitution could save us; a growing chorus now wonders whether we need to be saved from it." She frets that by limiting the power of the majority, the Constitution "can end up fostering the widespread cynicism that helps authoritarianism grow."
In a New York Times op-ed, "The Constitution Is Broken and Should Not Be Reclaimed," law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for liberals to "reclaim America from constitutionalism."
Other law professors have denounced the "constitutional cult" and the First Amendment as the Achilles Heel of America.
Given that the majority of voters reject panic politics and radical agendas, these figures are likely to become more activist and aggressive.
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I recently debated a Harvard professor at Harvard Law School on the lack of free speech and intellectual diversity at the school. I noted that Harvard had more than 75 percent of the faculty self-identified as "liberal" or "very liberal." Only 5 percent identified as "conservative," and only 0.4% as "very conservative." It is not that Harvard does not resemble America, it does not even resemble Massachusetts in its virtual purging of conservative or Republican professors.
We just had a country where the majority of voters chose Donald Trump. Among law school faculty who donated more than $200 to a political party, 91 percent of the Harvard faculty gave to Democrats.
Yet, the professor rejected the idea that Harvard faculty or its students should look like America (only 7 percent of incoming students identified as conservative). So, while the Supreme Court has a strong majority of conservatives and roughly half of the federal judges are conservative, Harvard law students will continue to be taught by professors who overwhelmingly reject those values, and some even reject "constitutionalism."
The result is that the Court will continue to be demonized while the media and academia maintain their hardened ideological silos.
The rage will continue and likely rise in the coming years. However, this critical institution just moved out of harm's way in this election. It will remain the key stabilizing institution in the most successful constitutional system in history.
