Although Hillary Clinton and Donald Trump discussed the Supreme Court at the debate Wednesday, they didn’t convey how crucial filling its vacancies will be for our constitutional rights. Justice Antonin Scalia’s seat will almost certainly be left for the next president to fill. But there are three more justices who are 78 or older — since 1960, 78 is the average age at which a justice has left the bench. Ruth Bader Ginsburg is 83; Anthony M. Kennedy, 80; and Stephen G. Breyer, 78.
Since 1971, when Richard Nixon’s third and fourth justices for the Supreme Court were confirmed, there have been five and sometimes as many as eight justices on the court who were appointed by Republican presidents. Now there are four appointed by Democratic presidents and four appointed by Republican presidents. The outcome of issues that intimately affect our lives will turn on who gets the chance to replace these justices.
Abortion rights. If Scalia is replaced by someone who favors abortion rights, Roe vs. Wade will be more secure than it has been in decades. If Justices Ginsburg, Breyer and Kennedy are replaced by Hillary Clinton, abortion rights will be protected for decades to come and the court may revisit some of its rulings that allowed restrictions on abortions. Conversely, if even two of these four seats are replaced by Donald Trump, it seems certain that, as he said in the debate, there will be five votes to overrule Roe vs. Wade and allow states to prohibit abortions.
Affirmative action. On June 23, in Fisher vs. University of Texas, an opinion by Justice Kennedy upheld race considerations as an element of the university’s admissions policy. As with abortion rights, replacing Scalia with a Democratic appointee ensures a secure majority to allow such affirmative action programs. But if even two vacancies are filled by Trump, there will probably be five votes to eliminate all affirmative action — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Clarence Thomas have made clear that this is their position.
Campaign finance. Recent decisions striking down federal and state campaign finance laws, including Citizens United vs. Federal Election Commission, which held that corporations can spend unlimited amounts of money in election campaigns, were 5-4 rulings. In each case, the majority comprised Roberts, Scalia, Kennedy, Thomas and Alito. In other words, the court now is split 4-4 when it comes to campaign finance laws.
A Clinton victory likely would mean, as she said in the debate, the overruling of Citizens United and a court far more willing to allow government regulation of campaign spending. A Trump victory would probably ensure exactly the opposite.
Gun control. Few issues so closely correspond to ideology and political party affiliation as the meaning of the 2nd Amendment. Until 2008, the Supreme Court had never invalidated any law as violating the 2nd Amendment. The court had ruled that the “right to bear arms” was about a right to have guns for the purpose of militia service. But in District of Columbia vs. Heller, the court, 5-4, struck down a 32-year-old ordinance that prohibited private ownership or possession of hand guns. Scalia wrote the decision, joined by Roberts, Kennedy, Thomas and Alito.
Again, the current court is probably split 4-4 on the meaning of the 2nd Amendment. If Clinton becomes president, her choice to fill Scalia’s seat is unlikely to extend gun rights and very well might make the majority necessary to overrule Heller. A Trump presidency would create a court committed to protecting personal gun rights and blocking firearm regulations.
Separation of church and state. Views on the establishment clause also track political party ideology on issues such as the constitutionality of prayer in public schools, of religious symbols on government property, and of aid to parochial schools for religious instruction. Conservatives interpret the establishment clause narrowly, as merely prohibiting the government from establishing a church or coercing religious participation. Liberals see the clause as, in the words of Thomas Jefferson, creating a wall separating church and state.
If Trump were to replace Scalia, Kennedy, Ginsburg and Breyer, there would probably be seven justices who would take the minimal approach. Conversely, if it is Clinton who has the chance to replace these justices, there likely would be six justices to enforce the wall interpretation.
One of the longest lasting legacies of any presidency is whom he or she picks for the Supreme Court. John Paul Stevens served 35 years on the high court. Clarence Thomas has been a justice for 25 years, and he is only 68 years old. The Nov. 8 election will determine our rights for decades to come.
Erwin Chemerinsky is the dean of the UC Irvine School of Law.