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In 1937, President Franklin Delano Roosevelt's efforts to pack the Supreme Court are said to have ended with a significant change in one justice in a major case. He said, “If you change the time, nine people will be saved.'' In 2024, changes in the Senate may have had a similar effect. President-elect Trump's victory this week means the court will remain institutionally unchanged for at least a decade unless court-packing plans and other extreme leftist policies are renewed.
There are hopes that Justice Clarence Thomas will take advantage of this opportune moment to step down and ensure that a fellow conservative jurist fills his seat. Justice Samuel Alito may also think now is a good time for a safe departure. It will take several years to reach the nomination red line before the next election.
The election means plans to pack the court have effectively been shot down, despite support from Democratic senators like Elizabeth Warren (D-Mass.) and Democratic Sen. Sheldon Whitehouse. The Supreme Court averted one of the biggest threats to its integrity in history following Vice President Kamala Harris' reported endorsement.
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The impact on the law will also be significant. Returning the issue of abortion to the states remains the same. Younger generations will grow up in a country where voters in each state can decide what restrictions to place on abortion.
Similarly, gun rights and religious rights will continue to be strongly protected. Checks on the government are also likely to be strengthened. Promoting wealth taxes and other measures is likely to be met with more skepticism in the courts.
With the possibility of two new judges being appointed, Mr. Trump is likely to nominate five to six judges in total. Liberals have previously argued that it is time for Justice Sonia Sotomayor to leave the court, but I disagreed. It is unprecedented for a single president to appoint seven of the nine justices. (I predict that the liberal campaign to force the mayor to retire ended around 2:30 a.m. on election night, as did calls to “end the filibuster” as undemocratic.)
Mr. Trump has shown admirable judgment in his nominations thus far. Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett are all outstanding jurists with considerable accomplishments. I testified at Gorsuch's Senate confirmation hearing, and I still consider him one of the most important and brilliant additions to the court in decades.
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These judges were subjected to harsh treatment during the confirmation process, including attacks on Mr. Barrett, who adopted a Haitian child. President Trump's new nominees are expected to receive a similar scorched-earth approach from the media and the left, but will need a reliable Senate majority to win approval.
These justices have demonstrated intelligence and integrity that will serve the court well, including voting with their liberal colleagues in important cases when principles require it. Trump can solidify his legacy by continuing it with candidates of his caliber over the next four years.
In this way, this election could be a key moment in ending one of the most dangerous periods in the court's existence. Losing control of the Senate will likely dampen calls for new restrictions on the court and calls for investigations of conservative judges for the time being. However, anger in the media and academic community is likely to increase further.
Both the media and academic commentators pushed for fundamental constitutional reforms, including packing the courts and reducing their jurisdiction. Many saw the Harris-Waltz administration as the vehicle for such extreme policies. Harris herself has promised to “reform” the court.
Some liberal figures even called for the dissolution of the court and other fundamental reforms.
Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, called for the repeal of key constitutional elements in his book, No Democracy Lasts Forever: How the Constitution Threatens America. . In an op-ed in the Los Angeles Times, he described conservative judges as “partisan hacks.”
In the New York Times, book reviewer Jennifer Zaray decried what she called “Constitution worship,” saying, “Americans have long believed that the Constitution would save us, but now we are There are growing voices questioning whether we even need to be saved.” She worries that by limiting the power of the majority, the constitution “could end up fostering a broader cynicism that fosters the growth of authoritarianism.”
In their New York Times op-ed, “The Constitution Is Broken and Shouldn't Be Reclaimed,'' Harvard Law Professor Ryan D. Dorfler and Yale Law Professor Samuel Moyn urge liberals to “constitutionally protect America.'' He called for a “recovery from principle.”
Other law professors have denounced “constitution worship” and the First Amendment as America's Achilles heel.
These people are likely to become more active and aggressive, given that the majority of voters reject panic politics and extremist policies.
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I recently had a discussion with a professor at Harvard Law School about the school's lack of free speech and intellectual diversity. Harvard University noted that more than 75 percent of its faculty identify as “liberal” or “very liberal.” Only 5% said they were “conservative,” and just 0.4% said they were “very conservative.” It's not that Harvard isn't unlike the United States, it's also unlike the University of Massachusetts in that it has effectively purged conservative and Republican professors.
There was just a country where a majority of voters chose Donald Trump. Among law school faculty who donated $200 or more to political parties, 91% of Harvard faculty donated to Democrats.
But he rejected the idea that Harvard's faculty and students should look like America (only 7% of admitted students identified as conservative). So even though the Supreme Court is dominated by conservatives and about half of the federal judges are conservative, Harvard Law students overwhelmingly reject those values. Some will continue to be taught by professors who reject “constitutionalism.”
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As a result, courts continue to be demonized while the media and academia maintain hardened ideological silos.
This anger is here to stay, and is likely to grow even more in the coming years. But this important institution has just been spared harm in this election. It will remain an important stabilizing institution in the most successful constitutional system in history.
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