Impact of the 2016 election on the United States Supreme Court

See also: Supreme Court vacancy, 2016: An overview

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2016 Presidential Election Date: November 8, 2016

Candidates Winner: Donald Trump (R) Hillary Clinton (D) • Jill Stein (G) • Gary Johnson (L) • Vice presidential candidates

Election coverage Important dates • Nominating process • Ballotpedia's 2016 Battleground Poll • Polls • Debates • Presidential election by state • Ratings and scorecards

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Last updated on October 20, 2016
This article followed the 2016 election cycle. For updated information on the Scalia vacancy, please see: Supreme Court vacancy, 2017: An overview. For more information on policy under the Trump administration, please see: Policy issues under the Trump administration, 2017-2021.

If President Barack Obama (D) is unable to convince the Senate to confirm his United States Supreme Court nominee, Chief Judge Merrick Garland, which seems likely, the next president could be responsible for filling numerous vacancies on the court over the course of the president's term due to retirement or death, charting the political and ideological course of the judicial branch for decades. If a Republican is elected president, the court could continue to issue decisions that are favorable to conservatives in the majority of the cases it hears. If a Democrat is elected president, however, the court could shift towards a more liberal direction. How far right or left the next president may shape the court will depend on which party is in control of the Senate after the 2016 elections.

Before the death of Justice Antonin Scalia on February 13, 2016, the Supreme Court had five justices who were appointed by Republican presidents and four justices who were appointed by Democratic presidents. Although justices are not elected and do not represent political parties, it is popularly accepted that the court’s "consistent conservatives" are Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, while the court’s "four consistent liberals" are Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Anthony Kennedy falls in the middle, but he sides with the liberal justices in about one-third of cases, often "on social issues, such as same-sex marriage." If Scalia's seat is filled by a liberal justice, it could be the largest ideological shift of one seat since Thomas replaced Justice Thurgood Marshall in 1991.

HIGHLIGHTS

Before the death of Justice Antonin Scalia on February 13, 2016, the Supreme Court had five justices who were appointed by Republican presidents and four justices who were appointed by Democratic presidents. If a Democrat is elected president, the court will likely become more liberal than at any other point in the last 50 years.

The next president could fill numerous seats on the Supreme Court during his or her presidency.

In 1895, Rufus Wheeler Peckham, President Grover Cleveland's (D) nominee to the United States Supreme Court, was the last justice nominated by a Democratic president who was confirmed by a Republican-controlled Senate.

University of Texas law professor Justin Driver commented on the public perception of the justices, saying, “An undesirable consequence of the court’s partisan divide is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes.” Because justices often deliver opinions that align with the political ideology of the president who nominates them, especially in cases concerning social issues, presidents are able to shape the law and American life through these "politicians clad in fine robes.”

The next president may have the responsibility of filling Scalia's seat and the opportunity to significantly impact the ideological makeup of the court by filling other seats on the court. The average age at which a Supreme Court justice retires is 78.7 years old. Justice Kennedy will be 80 when the next president takes office, Justice Ginsburg will be 83, and Justice Breyer will be 78. Considering the average retirement age and the ages of these justices, there could be as many as four new justices on the court before the next president leaves office.

The results of the 2016 presidential and Senate elections, as well as the potential that Judge Garland will not be confirmed by the Republican-controlled Senate, could mean that Scalia's seat remains empty and the Supreme Court operates with eight justices until one party has a filibuster-proof majority, the "nuclear option" is invoked, or there is unified control of the White House and Senate.

Without a filibuster-proof majority of 60 votes, the majority party will need members of the minority to vote in support of the president's SCOTUS nominee, which could be difficult given the partisan divide on Capitol Hill. Obtaining a fillibuster-proof majority after the election is unlikely. The last time it occurred in the Senate was in 2009 when the Democrats were in control, "but that was the first time either party had more than 60 votes since 1978."

Senate leadership could also invoke the "nuclear option" to get nominees confirmed. The "nuclear option" changes "Senate rules to enable judicial and executive nominees to be confirmed with just 51 votes instead of 60," according to CNN. In November 2013, then-Senate Majority Leader Harry Reid used the option to stop Republicans from blocking three nominees to the D.C. Circuit Court. The change in rules applied to many federal court nominees, but did not include Supreme Court nominees.

If one party is in control of the White House and the other is in control of the Senate after the election, Ian Millhiser, a senior fellow at the Center for American Progress Action Fund, predicted that “It’s very likely that that seat just stays vacant until there’s unified control.” Josh Blackman, a constitutional law professor at South Texas College of Law, agreed, saying, "We should be prepared to consider leaving a seat vacant."

Will the Senate confirm Garland? How could the ideological composition of the Supreme Court change after the 2016 election? Will Justice Scalia's seat remain empty indefinitely? What impact will the changing court have on American life? What have the 2016 presidential candidates said about nominating justices? These questions are considered in the scenarios described below.

Political ideology of the Supreme Court from liberal (far left) to conservative (far right)
Sotomayor: 78	Kagan: 73	Ginsburg: 68	Breyer: 47	Kennedy: 36	Thomas: 16	Roberts: 12	Alito: 10
Note: According to InsideGov, "A Segal–Cover score is an attempt to measure the 'perceived qualifications and ideology' of United States Supreme Court justices. The scores are created by analyzing pre-confirmation newspaper editorials regarding the nominations from The New York Times, Washington Post, Chicago Tribune, Los Angeles Times, St. Louis Post-Dispatch, and The Wall Street Journal. Each nominee receives an ideology score that ranges from 0 to 100, with 0 being most conservative and 100 being most liberal. Case issue scores are derived from the Court's own statements as to what the case is about and are taken from a public policy rather than legal perspective."

President Obama and the future of SCOTUS

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Before the election

It appears increasingly unlikely that D.C. Circuit Court Chief Judge Merrick Garland will be confirmed by the Senate prior to the 2016 election. Senate leaders can choose if and when they want to schedule a vote on Garland, and U.S. Senate Majority Leader Mitch McConnell (R-Ky.) has been clear that he has no intention of doing so before the election. In a statement, he said, "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president."

Many Senate Democrats, including Minority Leader Harry Reid (D-Nev.), have said that it would be unprecedented for the Senate to deny or delay a vote on Garland. Reid said, "It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities."

U.C. Irvine law professor Rick Hasen noted that many, like Reid, will use historical precedent as an argument to vote on Garland's nomination before the election, but "All of that history is kind of besides the point" because it "[n]ever came during such an intense period of polarization, with polarization on the Court lining up so neatly with political party affiliation.”

Hasen also noted that it is possible that the Senate will vote on confirming Garland to the United States Supreme Court, if vulnerable Republican senators face intense political pressure to vote. Hasen wrote, “I expect that if those Republicans get a lot of voter disapproval for blocking a stellar Democratic nominee, there will be a hearing and a vote. If it is a real moderate, some Republicans could even vote for the President’s nominee. If there is not a lot of pressure there will not be a vote.” Some Republican senators facing close re-election campaigns this fall include Mark Kirk (Ill.), Kelly Ayotte (N.H.), Pat Toomey (Pa.), and Ron Johnson (Wis.); each is likely to face pressure to advocate for a hearing and vote on Garland's nomination.

With Republicans in control of the Senate, 60 votes are needed to break a Republican filibuster and confirm Garland. For that to happen, at least 14 Republicans would have to vote with every Senate Democrat. Such a possibility may be remote, even though Garland is considered to be a "centrist" or moderate justice. However, some dispute the moderate label given to Garland and place him ideologically among Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, the court's most liberal justices.

According to The Washington Post, "Grover Cleveland was the last Democratic president to get a Supreme Court nomination through a Republican-controlled Senate." In 1895, Rufus Wheeler Peckham, Cleveland's nominee, was confirmed.

After the election, before the new administration and Congress are sworn-in

There is a slight possibility that the Senate will vote to confirm Merrick Garland to the Supreme Court after the 2016 elections during the lame duck period. If a Democrat wins the presidency, there is a chance the Republican-controlled Senate will confirm Garland, rather than waiting for the next Democratic president to nominate someone.

If a Republican wins the presidency, there will not be a vote on Garland. Instead, the Republican-controlled Senate will wait for the next president to nominate a conservative-leaning justice.

SCOTUS scenarios during the lame duck session
Scenario	Likely outcome
President, Senate	No confirmation
President, Senate	No confirmation
President, Senate	Possible confirmation of a Moderate SCOTUS
President, Senate	Possible confirmation of a Moderate SCOTUS

Recess confirmation
President Barack Obama could appoint a justice while the Senate is in recess, but SCOTUSblog's Lyle Denniston thinks that scenario is very unlikely. Article II of the U.S. Constitution gives the president the authority to appoint individuals during a Senate recess, "but the appointee can only serve until the end of the following Senate session. The president (if still in office) can then try again during a new Senate session, by making a new nomination, and that must be reviewed by the Senate." In June 2014, the court clarified this constitutional power in National Labor Relations Board v. Noel Canning. The court decided the following:

• "First, on the president’s side, the Court ruled that the recess appointment power applies when the Senate leaves town for a break in the middle of an annual sitting, or a break at the end of each annual session."

• "Second, also on the president’s side, the decision declared that the president during a recess can fill a vacancy even if the opening occurred well before the recess began."

• "Third, on the Senate’s side, the ruling made clear that it has to last more than three days, without saying how much more time must pass without the Senate out of town and doing nothing."

• "Fourth, strongly on the Senate’s side, the decision left it largely up to the Senate to decide when it does take a recess, allowing it to avoid the formality of a recess by taking some legislative action, however minor or inconsequential and however few senators actually take part in some action."

SCOTUS scenarios after the new administration and Congress are sworn-in

If one party gains control of both the White House and the Senate, the court will swing in the direction of that party's ideology. If one party is in control of the White House and another is in control of the Senate, the court will swing in the ideological direction of the president, but not as dramatically as it potentially could with control of the White House and Senate. A president whose party is not in control of the Senate will have to nominate moderate justices if he or she has any chance of being confirmed.

In both of these scenarios, it is possible that the president's nominee is filibustered, leaving the ninth seat on the court vacant for an extended period of time. In order for a nominee to be confirmed, 60 votes are needed. It is likely that Republicans will have to vote for a Democratic nominee or Democrats will have to vote for a Republican nominee, unless the majority party has control of 60 seats to prevent a filibuster. However, it is unlikely that there will be a fillibuster-proof majority after the election - a scenario which has occurred twice since 1978.

Senate leadership could also invoke the "nuclear option" to get nominees confirmed. The "nuclear option" changes "Senate rules to enable judicial and executive nominees to be confirmed with just 51 votes instead of 60," according to CNN. Former Senate Majority Leader Harry Reid used the option in 2013 to change the vote requirement for executive appointments under consideration on the floor in response to Republicans blocking three D.C. Circuit Court nominees. Prior to the rule change, senators could filibuster until a cloture motion requiring 60 votes was passed in the chamber.

SCOTUS scenarios after the 2016 Election
Scenario	Likely outcome
President, Senate	Conservative SCOTUS*
President, Senate	Moderate SCOTUS
President, Senate	Liberal SCOTUS*
President, Senate	Moderate SCOTUS

* The minority party can filibuster the nominee and force the majority party to nominate a more moderate justice or refuse to confirm a justice indefinitely.

How long can the Supreme Court operate with eight justices?

See also Process to fill the vacated seat of Justice Antonin Scalia

If the White House and Senate remain divided after the 2016 election, Justice Antonin Scalia's seat could remain empty long after the new administration and Senate are sworn in. The Constitution does not require the Senate to hold a vote on a nominee, and it does not require the seat to be filled after a certain time frame. The seat will remain empty until the Senate votes to confirm a nominee. Numerous 4-4 decisions could result, which would give substantial power to the lower courts whose rulings would be affirmed without setting a nationwide precedent.

Richard Albert, an associate professor at Boston College Law School, noted that the Constitution does not require nine justices for the Supreme Court to hear and decide cases. He wrote, “The bottom line is that there is nothing special about having nine justices, and it is quite simply misleading to argue that the Court cannot function any other way.” The number of justices on the United States Supreme Court has fluctuated throughout history. The Judiciary Act of 1869 set the number of justices at nine, and it requires a quorum of six justices to decide a case. However, the act does not require nine justices to function.

Will any justices leave their seats on the court during the next administration's tenure?
If a Democrat is elected president, liberal Justices Ruth Bader Ginsburg and Stephen Breyer may consider retiring to allow the president to replace them with ideologically similar justices. According to The Washington Post, “From 1953 to 2010, 46 percent of exiting Supreme Court justices left during a presidency that shared their partisanship.” In addition, “Supreme Court justices are 168 percent more likely to retire if the incumbent president is in the same party as the president who originally appointed them to the Court, and the administration is in the first or second year of a four-year term.” Justice Anthony Kennedy, who was nominated by Republican President Ronald Reagan, sides with the liberal justices in about one-third of the cases heard by the court and the conservative justices the rest of the time. He may or may not time his retirement depending on which party controls the White House.

What impact will the Supreme Court have on American life?

On many important issues, including the death penalty, the Second Amendment, abortion, campaign finance, and voting rights, the court has issued 5-4 rulings, with the "four consistent conservatives" and swing vote Justice Anthony Kennedy defeating the "four consistent liberals." These 5-4 rulings have had a major impact on American life, and, if the ideological balance of the court shifts in a liberal direction, these rulings could be overturned, but not as quickly as some may like.

New York Times reporter Adam Liptak wrote that in order for the court to narrow previous decisions or reverse rulings completely, "Appropriate cases presenting the relevant issues must reach the court, for starters, which can sometimes be a matter of happenstance. Then there is the doctrine of stare decisis, which generally counsels against overruling settled law." In addition, Eric J. Segall, a law professor at Georgia State, added that “All the justices to varying degrees are sensitive to the charge that they are simply politicians in robes. Overturning cases because the balance of power has shifted does not happen right away or sit well with them.”

The 2016 election and the future ideological makeup of the court could impact the issues and cases outlined below.

Death penalty

During a September 2015 speech, the late Justice Antonin Scalia, a supporter of the death penalty, said that he "wouldn't be surprised" if the Supreme Court ruled the death penalty unconstitutional. His statement was likely based on the dispute he had with Justice Stephen Breyer about the constitutionality of the death penalty during the 2014-2015 SCOTUS term.

On June 29, 2015, the court ruled in a 5-4 decision that it was constitutional for the state of Oklahoma to substitute sodium thiopental, the first drug in the three-drug protocol used for lethal injection, with midazolam.

In his dissenting opinion, Breyer wrote, "The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?"

When the decision in Glossip v. Gross was announced, Scalia said from the bench, "Maybe we should celebrate that these two justices [Breyer and Justice Ruth Bader Ginsburg] are trying to kill [the death penalty] outright rather than peck it to death."

In addition, Justice Clarence Thomas joined Scalia in a concurring opinion addressing Breyer’s dissent, rather than Justice Samuel Alito’s majority opinion. Scalia wrote, "Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment."

After Glossip v. Gross, some expected the court to address the constitutionality of the death penalty in the four cases that they heard during the 2015-2016 term concerning capital punishment, but they did not. The court also declined to hear Walter v. Pennsylvania, a case that presented a challenge to the constitutionality of the death penalty. After the petition was denied, Hill reporter Lydia Wheeler wrote, "The court appears to be waiting for the right case to weigh in."

If the court shifts to the left after the 2016 election, the justices may choose to hear a case addressing the constitutionality of the death penalty, potentially rejecting the constitutionality of capital punishment. If the court remains right-leaning, the death penalty will likely remain an option for states that choose to issue the punishment.

Second Amendment

In the 2008 case District of Columbia v. Heller and the 2010 McDonald v. City of Chicago, the court issued 5-4 rulings stating that the Second Amendment protects an individual's right to keep and bear a firearm and that state and local regulations must meet the standards of the amendment.

In D.C. v. Heller, a group of gun owners challenged an ordinance in Washington, D.C., that made it illegal to carry an unregistered firearm. In addition, the law also made it a crime to have a lawfully-owned firearm in one’s home that was not “unloaded and disassembled or bound by a trigger lock or similar device.” In 2008, the court held that “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Justice Antonin Scalia authored the 5-4 majority opinion.

In a follow-up to D.C. v. Heller, McDonald v. City of Chicago challenged gun bans in Chicago, Illinois, and Oak Park, Illinois. In 2010, the court ruled that the "Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense." In his majority opinion, Justice Samuel Alito wrote, "[T]he Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty. ... The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner."

Since 2010, the court has declined to hear any Second Amendment cases, despite having many opportunities to do so. National Review writer Charles C.W. Cooke wrote that the court's decisions in Heller and McDonald left open the question: "'[T]o what extent does the Second Amendment protect the right to keep and bear arms, and what may governments do to limit that right?' Thus far, the Supreme Court hasn’t weighed in on this question, which has meant that the standard has been applied differently across the country."

It is unclear why the court has refused to hear a Second Amendment case since the 2010 ruling, but if Scalia's seat if filled by a conservative justice, those who support the 2008 and 2010 decisions will likely be pleased by future rulings clarifying these precedents. If Scalia's seat is filled with a liberal justice, Heller would likely be narrowed to "the point of irrelevancy," according to Georgia State law professor Eric J. Segall.

Tom Ginsburg, a law professor at the University of Chicago, said, “If we got a fifth liberal on the court, the pendulum would swing pretty quickly on gun control. I expect that we’d see a major shift in the kind of gun control laws that get approved by the court. Look for enhanced registration requirements as the first step.”

At the third and final presidential debate, moderator Chris Wallace asked both candidates about their stance on the Second Amendment:

“

Wallace: Mr. Trump, thank you. We now have about ten minutes for an open discussion. I want to focus on two issues that in fact, by the justices that you name, could end up changing the existing law of the land. First, is one that you mentioned Mr. Trump, and that is guns. Secretary Clinton, you said last year, and let me quote: “The Supreme Court is wrong on the second amendment.” And now, in fact, in the 2008 Heller case the court ruled that there is a constitutional right to bear arms, but a right that is reasonably limited. Those were the words of the judge Antonin Scalia, who wrote the decision. What's wrong with that? Clinton: Well, first of all, I support the second amendment. I lived in Arkansas for 18 wonderful years. I represented upstate New York. I understand and respect the tradition of gun ownership that goes back to the founding of our country, but I also believe that there can be and must be reasonable regulation. Because I support the second amendment doesn't mean that I want people who shouldn't have guns to be able to threaten you, kill you or members of your family. And so when I think about what we need to do, we have 33,000 people a year who die from guns. I think we need comprehensive background checks, need to close the online loophole, close the gun show loophole. There’s other matters that I think are sensible, that are the kinds of reforms that would make a difference, that are not in any way conflicting with the second amendment. You mentioned the Heller decision and what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the second amendment in that case. Because what the District of Columbia was trying to do was to protect toddlers from guns. And so they wanted people with guns to safely store them. And the court did not accept that reasonable regulation but they've accepted many others. So I see no conflict between saving people's lives and defending the second amendment. Wallace: Let me bring Mr. Trump in here. The bipartisan debate coalition got millions of votes on questions to ask here. And this was in fact one of the top questions that they got. How will you ensure the second amendment is protected? You just heard secretary Clinton's answer. Does she persuade you that while you may disagree on regulation, that in fact she in fact she supports the second amendment right to bear arms. Trump: Well the D.C. versus Heller decision was very strongly... and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. And Justice Scalia was so involved and it was a well crafted decision. But Hillary was extremely upset. Extremely angry. And people that believe in the second amendment and believe in it very strongly were very upset with what she had to say. Wallace: Let me bring in secretary Clinton. Were you extremely upset? Clinton: Well, I was upset because unfortunately, dozens of toddlers injure themselves, even kill people with guns because unfortunately, not everyone who has loaded guns in their homes takes appropriate precautions. But there is no doubt that I respect the second amendment. That I also believe there is an individual right to bear arms. That is not in conflict with sensible, common sense regulation. And you know, look. I understand that Donald has been strongly supported by the NRA, the gun lobby is on his side. They're running millions of dollars of ads against me and I regret that because what I would like to see is for people to come together and say, of course we're going to protect and defend the second amendment. But we're going to do it in a way that tries to save some of these 33,000 lives that we lose every year. Wallace: Let me bring Mr. Trump back into this because in fact, you oppose any limits on assault weapons, any limits on high capacity magazines. You support a national right-to-carry law. Why, sir? Trump: Well, let me just tell you before we go any further, in Chicago, which has the toughest gun laws in the United States, probably you could say by far, they have more gun violence than any other city. So we have the toughest laws and you have tremendous gun violence. I am a very strong supporter of the second amendment. And I don't know if Hillary was saying it in a sarcastic manner but I'm very proud to have the endorsement of the NRA and it was the earliest endorsement they've ever given to anybody who ran for president. So I'm very honored by all of that. We are going to appoint justices, this is the best way to help the second amendment. We are going to appoint justices that will feel very strongly about the second amendment. That will not do damage to the second amendment.

”

Abortion

The 2010 elections increased the number of Republican trifecta states from nine to 21, and there are currently 24. These trifecta states “were able to enact a record 231 abortion-regulating bills between 2011 and 2014,” according to the Guttmacher Institute and Americans United for Life. One of those abortion-regulating bills, Texas House Bill 2, which requires abortion doctors and facilities to meet certain requirements, was reviewed by the Supreme Court during the 2015 term and the court voided those requirements.

Laws like Texas' HB 2 were proposed in state legislatures across the country, and if Republicans maintain their trifectas after the 2016 elections and the Supreme Court splits or rules in favor of Texas in Whole Woman’s Health v. Hellerstedt, state legislators will likely continue to introduce abortion-regulating legislation designed to reduce the number of abortions and protect women's health.

In Whole Woman’s Health v. Hellerstedt, the justices considered two provisions of Texas House Bill 2 as to whether these provisions constituted "undue interference from the State" in a woman's right to obtain an abortion. In a 5-3 opinion authored by Justice Stephen Breyer, the court struck the provisions as placing an undue burden on a woman's right to obtain an abortion.

At the third and final presidential debate, moderator Chris Wallace asked both candidates about their stance on the issue of abortion:

“

Wallace: Well, let's pick up on another issue which divides you, and the justices that, whoever ends up winning this election appoints, could have a dramatic effect there. That's the issue of abortion. Mr. Trump, you're pro-life. And I want to ask you specifically. Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes, in fact, states a woman's right to abortion. Trump: Well, if that would happen, because I am pro-life and I will be appointing pro-life judges, I would think that would go back to the individual states. Wallace: I'm asking you specifically would you- Trump: If they overturned it, it would go back to the states. Wallace: But what I'm asking you, do you want to see the court overturn it? You just said you want to see the court protect the second amendment, do you want to see the court overturn- Trump: If we put another two or perhaps three justices on, that is really what will happen. That will happen automatically in my opinion. Because I am putting pro-life justices on the court. I will say this. It will go back to the states and the states will then make a determination. Clinton: Well, I strongly support Roe v. Wade which guarantees a constitutional right to a woman to make the most intimate, most difficult in many cases, decisions about her health care that one can imagine. And in this case, it is not only about Roe v. Wade. It is about what is happening right now in America. So many states are putting very stringent regulations on women that block them from exercising that choice to the extent that they are defunding planned parenthood which, of course provides all kinds of cancer screenings and other benefits for women in our country. Donald has said he is in favor of defunding planned parenthood. He even supported shutting the government down to defund planned parenthood. I will defend planned parenthood. I will defend Roe v. Wade and I will defend women's rights to make their own healthcare decisions. We have come too far to have that turn back now. And indeed, he said women should be punished. There should be some form of punishment for women who obtain abortions. And I could just not be more opposed to that kind of thinking. Wallace: I'm going to give you a chance to respond. But I wanted to ask you secretary Clinton, I want to explore how far you think the right to abortion goes. You have been quoted as saying that the fetus has no constitutional rights. You also voted against a ban on late term partial birth abortions. Why? Clinton: Because Roe v. Wade very clearly sets out that there can be regulations on abortion so long as the life and the health of the mother are taken into account. And when I voted as a senator, I did not think that that was the case. The kinds of cases that fall at the end of pregnancy are often the most heartbreaking, painful decisions for families to make. I have met with women who have, toward the end of their pregnancy, get the worst news one could get. That their health is in jeopardy if they continue to carry to term. Or that something terrible has happened or just been discovered about the pregnancy. I do not think the United States government should be stepping in and making those most personal of decisions. So you can regulate if you are doing so with the life and the health of the mother taken into account. Wallace: Mr. Trump, your reaction. Particularly on this issue of late term partial birth abortions. Trump: Well I think it is terrible. If you go with what Hillary is saying, in the ninth month you can take baby and rip the baby out of the womb of the mother just prior to the birth of the baby. Now, you can say that that is okay and Hillary can say that that is okay, but it's not okay with me. Because based on what she is saying and based on where she's going and where she's been, you can take baby and rip the baby out of the womb. In the ninth month. On the final day. And that's not acceptable. Clinton: Well that is not what happens in these cases. And using that kind of scare rhetoric is just terribly unfortunate. You should meet with some of the women I've met with. Women I've known over the course of my life. This is one of the worst possible choices that any woman and her family has to make. And I do not believe the government should be making it. You know, I've had the great honor of traveling across the world on behalf of our country. I've been to countries where governments either forced women to have abortions, like they used to do in China, or forced women to bear children like they used to do in Romania. And I can tell you the government has no business in the decisions that women make with their families in accordance with their faith, with medical advice. And I will stand up for that right. Trump: And honestly, nobody has business doing what I just said. Doing that as late as one or two or three or four days prior to birth. Nobody has that.

”

Campaign finance

Federal campaign finance laws and regulations
Campaign finance by state
Comparison of state campaign finance requirements
Satellite spending
Campaign finance agencies
Federal Election Commission
Citizens United v. Federal Election Commission

Democratic presidential nominee Hillary Clinton promised to nominate Supreme Court justices who will overturn the ruling in Citizens United v. Federal Election Commission, a position her primary opponent, U.S. Sen. Bernie Sanders (D-Vt.), also held. In the 2010 case, the court ruled that the First Amendment right to free speech applies to corporations, and therefore their political spending cannot be limited by the government as long as they are not directly tied to a political party or candidate.

Writing the 5-4 majority opinion in Citizens United, Justice Anthony Kennedy, joined by the four conservative justices, ruled that the First Amendment does not allow the government to regulate political speech. Kennedy wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.”

The decision significantly increased the amount of money super PACs and outside groups spend on campaigns. According to the Center for Responsive Politics, super PACs spent more than $345 million in the 2014 election cycle.

Even if Clinton or Sanders wins the election and is able to get their nominee confirmed, the campaign finance system may not change as quickly as some would like, according to Tom Ginsburg, a law professor at the University of Chicago. Ginsburg said, “Citizens United is on every liberal’s list of opinions that ought to go. But the problems in campaign finance run deeper than that, perhaps back to Buckley v. Valeo. Comprehensive reform may require more than just overturning a single case.”

Voting rights

In a major voting rights case in 2013, the court ruled that Section 4 of the Voting Rights Act was unconstitutional. Before the court's decision in Shelby County v. Holder, some Southern states and local governments were required to obtain federal preclearance before making changes to their voting laws, systems, and procedures under Sections 5 of the Voting Rights Act of 1965. Section 4(b) contained a formula used to determine which governments were subject to the preclearance requirement of Section 5. The purpose of the act was to prevent racial discrimination in voting due to practices like gerrymandering.

In a 5-4 decision, the court’s four conservative justices and moderate Justice Anthony Kennedy sided against the court’s four liberal justices. New York Times reporter Adam Liptak wrote, “[T]he two sides drew sharply different lessons from the history of the civil rights movement and the nation’s progress in rooting out racial discrimination in voting. At the core of the disagreement was whether racial minorities continued to face barriers to voting in states with a history of discrimination.”

In her dissent, Justice Ruth Bader Ginsburg wrote, “For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made. … In my judgment, the Court errs egregiously by overriding Congress’ decision.”

In his majority opinion, Chief Justice John Roberts was clear that the court was not overturning the Voting Rights Act's ban on discriminatory voting rules, while also noting that the preclearance formula in its current state needed to be updated to reflect the times. Roberts wrote, “Congress may draft another formula based on current conditions. ... Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

Although it is up to Congress to pass legislation revising and updating the Voting Rights Act, the Supreme Court justices will likely be required to decide if the new version is constitutional. Liptak wrote that if Congress rewrites the formula, “a new liberal majority would most likely sustain the new version.”

Affirmative action

Affirmative action
Affirmative action
Affirmative action by state
Affirmative action and anti-discrimination laws
Affirmative action and anti-discrimination lawsuits
Civil Rights Act of 1866
Civil Rights Act of 1964
Consideration of race in college admissions

In the 2013 case Fisher v. University of Texas, the Supreme Court declined to rule on the constitutionality of affirmative action in higher education, instead choosing to send the case back to the United States Court of Appeals for the 5th Circuit for further review. The lower court ruled that the University of Texas at Austin's admissions policy could continue, and in July 2014, Abigail Fisher, a white woman who was denied admission to UT-Austin, petitioned the Supreme Court to review her case once again.

Fisher argued that because UT-Austin considers race when choosing applicants, her Fourteenth Amendment right to equal protection was violated. Lisa Soronen of the National Conference of State Legislatures explained that UT-Austin automatically admits students from Texas high schools who graduate in the top 10 percent of their class, per "Texas’s Top Ten Percent Plan." She explained, "Unless an applicant has an 'exceptionally high academic Index,' he or she will be evaluated through a holistic review where race is one of a number of factors."

After the court heard Fisher's case for the second time on December 9, 2015, SCOTUSBlog's Lyle Denniston wrote, "The case, it would appear, now comes down to three options: kill affirmative action nationwide as an experiment that can’t be made to work, kill just the way it is done at the Texas flagship university because it can’t be defended, or give the university one more chance to prove the need for its policy."

Denniston wrote that three and possibly four of the justices appeared to be on Fisher's side, and three appeared to be on UT-Austin's side. Justices Samuel Alito, Clarence Thomas, and the late Antonin Scalia expressed opinions opposing the need for affirmative action. He added that Chief Justice John Roberts "openly fretted about whether the time would ever come when race would no longer be used in affirmative action on college campuses." Roberts "noted that, twelve years ago, the Court had predicted that there would be no need to use race in college admissions within twenty-five years, but about half of that time is now gone."

Denniston also noted that "there was no doubt that there are three Justices clearly on the university’s side." Those justices are Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justice Anthony Kennedy's position was unclear, and Justice Elena Kagan recused herself from the case.

In a June 2016, the court, in an opinion authored by Justice Anthony Kennedy, held that the University of Texas program did not run afoul of the equal protection clause of the 14th Amendment, but stated that "a college must continually reassess its need for race-conscious review ... The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies."

What have the presidential nominees said about Garland and appointing SCOTUS justices?

See also: 2016 presidential candidates on U.S. Supreme Court nominee Merrick Garland

Both of the 2016 major party presidential nominees have commented on Chief Judge Merrick Garland's nomination to the United States Supreme Court and how they would choose future Supreme Court justices. See their comments below.

Democratic nominee

Hillary Clinton

See also: Hillary Clinton presidential campaign, 2016

On Merrick Garland: On March 16, 2016, Hillary Clinton released the following statement on the nomination of Chief Judge Merrick Garland to the United States Supreme Court.

Clinton's March 16, 2016, statement on SCOTUS nominee Merrick Garland

On nominating President Obama to the Supreme Court: During a campaign event in Iowa on January 26, 2016, a voter asked Clinton if she would consider nominating President Obama to the U.S. Supreme Court. She said, "Wow, what a great idea. No one has ever suggested that to me, I love that, wow. He may have a few other things to do but I tell you that's a great idea. I would certainly take that under advisement. I mean he’s brilliant, and he can set forth an argument, and he was a law professor, so he’s got all the credentials. Now we do have to get a Democratic Senate to get him confirmed so you’re going to have to help me on that, OK?"

On the type of justices she would nominate to the Supreme Court: In an op-ed published in The Boston Globe on January 8, 2016, Clinton wrote that she would appoint justices to the Supreme Court that would "protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections." Clinton wrote that on "Election Day, three of the current justices will be over 80 years old, which is past the court’s average retirement age. The next president could easily appoint more than one justice. That makes this a make-or-break moment — for the court and our country." She added that Republicans have been vocal about packing the court with conservative justices. "After years of accusing liberals of judicial activism, conservatives are wholeheartedly relying on Republican-appointed judges to undo progressive achievements. They’re using radical legal strategies to accomplish through the courts what they’ve failed to do through legislation, like dismembering the Voting Rights Act or attacking unions. A Republican president would support those efforts. I will oppose them."

On the United States Constitution: In 2007, Clinton explained that she viewed the United States Constitution as an "organic, growing, evolving set of principles that have stood the test of time and that and can't just be looked at as though it is frozen at some point in the late eighteenth century."

On appointing justices who will overturn Citizen's United: On May 18, 2015, Clinton "said publicly that she did have such a metric [for choosing Supreme Court justices]: overturning the Citizens United decision of 2010," according to The New York Times. Clinton said, “I will do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections."

Republican nominee

Donald Trump

See also: Donald Trump presidential campaign, 2016

On his list of possible Supreme Court nominees: On September 23, 2016, Trump released a second list of individuals expanding on the list released in May. Trump announced that he would not only select a successor to Justice Scalia from his list, but added "I will choose only from it in picking future Justices of the United States Supreme Court."

According to a statement attributed to Trump and released via his campaign website,

“

We have a very clear choice in this election. The freedoms we cherish and the constitutional values and principles our country was founded on are in jeopardy. The responsibility is greater than ever to protect and uphold these freedoms and I will appoint justices, who like Justice Scalia, will protect our liberty with the highest regard for the Constitution. This list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court. I would like to thank the Federalist Society, The Heritage Foundation and the many other individuals who helped in composing this list of twenty-one highly respected people who are the kind of scholars that we need to preserve the very core of our country, and make it greater than ever before.

”

This list was combined with a list released by Trump on May 18, 2016, of potential Supreme Court nominees. The complete list of judges from both lists is:

• Keith Blackwell, Supreme Court of Georgia
  

• Charles Canady, Supreme Court of Florida
  

• Steven Colloton, U.S. Court of Appeals for the Eighth Circuit
  

• Allison Eid, Supreme Court of Colorado
  

• Neil Gorsuch, U.S. Court of Appeals for the Tenth Circuit
  

• Raymond Gruender, U.S. Court of Appeals for the Eighth Circuit
  

• Thomas Hardiman, U.S. Court of Appeals for the Third Circuit
  

• Raymond Kethledge, U.S. Court of Appeals for the Sixth Circuit
  

• Joan Larsen, Supreme Court of Michigan
  

• Mike Lee, U.S. Senator from Utah
  

• Thomas Lee, Supreme Court of Utah
  

• Edward Mansfield, Supreme Court of Iowa
  

• Federico Moreno, U.S. District Court for the Southern District of Florida
  

• William Pryor, U.S. Court of Appeals for the Eleventh Circuit
  

• Margaret Ryan, U.S. Court of Appeals for the Armed Forces
  

• Amul Thapar, U.S. District Court for the Eastern District of Kentucky
  

• Timothy Tymkovich, U.S. Court of Appeals for the Tenth Circuit
  

• David Stras, Supreme Court of Minnesota
  

• Diane Sykes, U.S. Court of Appeals for the Seventh Circuit
  

• Don Willett, Supreme Court of Texas
  

• Robert Young, Supreme Court of Michigan
  

On nominating his sister to the Supreme Court: On February 14, 2016, Trump said that he was joking when he stated in 2015 that he would appoint his sister, federal judge Maryanne Trump Barry, to the Supreme Court if given the opportunity. He said, “My sister’s a brilliant person, known as a brilliant person, but it’s obviously a conflict. … My sister, also she — she also happens to have a little bit different views than me, but I said in that in a very joking matter, and it was all lots of fun and everything else.”

On possible replacements for Justice Scalia: At the Republican presidential debate on February 13, 2016, Trump identified federal judges Diane Sykes and William Pryor as potential replacements for Antonin Scalia. He added that he expected President Barack Obama would nominate a justice and that it was "up to Mitch McConnell, and everybody else to stop it. It's called delay, delay, delay."

Libertarian nominee

Gary Johnson

See also: Gary Johnson presidential campaign, 2016

On nominating Supreme Court justices: On July 23, 2016, comic Drew Carey hosted a fundraiser for Gary Johnson. According to the Los Angeles Times, about 145 people attended the event raising an estimated $100,000 for the campaign. During a question-and-answer session, Johnson was asked about his stance on the Islamic State. Johnson said “that the terrorist group had largely been contained geographically, although he acknowledged that the problem of the group inspiring ‘lone-wolf’ attackers posed a thornier challenge.” Johnson also told supporters that his running mate Bill Weld would be responsible for nominating Supreme Court justices and other federal judges.

In a July 25, 2016, interview with Reason.com reporters Nick Gillespie and Justin Monticello, Johnson and Weld discussed nominations to the U.S. Supreme Court in the following exchange:

“

GILLESPIE: The Supreme Court looms large in everybody's political calculations. Who are the Supreme Court picks you're going to make? JOHNSON: Really, there are going to be no litmus test. You're going to appoint good people, and you're going appoint people that look at the Constitution of original intent. WELD: Well, I don't think you have to panic and say it has to be a way lefty or way righty. Steve Breyer has been a good justice. He was appointed by Democrats. GILLESPIE: A Massachusetts guy, right? WELD: A Massachusetts guy. Merrick Garland, I think, would have been a very good pick, and he's nominated by Obama. Everyone sort of agrees on that. It's just the two party hysteria that says, "Just as you can have far-right congressmen in the Republican Party and far-left congressmen, congresswomen in the Democratic Party, therefore the same is true for the Supreme Court." The opposite is the case. You want people who are tranquil of mind and can analyze the issues and come to a conclusion that makes sense, rooted in the jurisprudence of our country going back hundreds of years.

”

Green Party nominee

Jill Stein

See also: Jill Stein presidential campaign, 2016

On the Supreme Court and immigration: Stein's campaign page notes her opposition to the Supreme Court's June 23, 2016, per curiam decision in United States v. Texas that left in place a lower court judge's injunction on President Obama's deferred action policies. The policies would allow individuals residing in the country illegally the opportunity to avoid deportation and obtain work permits and driver’s licenses.

Stein was quoted on the subject, saying,

“

Our nation of immigrants needs a just immigration system that won't allow the ruling elite to divide working people. That means halting deportations, passing the DREAM Act, and creating legal status and a path to citizenship for hard-working, law-abiding undocumented immigrants ... The US government shouldn't be deporting innocent families who are fleeing violence, starvation and persecution in their home countries. Forcing them to return puts them at risk of rape, torture, and death. Many have already had family members murdered or actively threatened with murder...

”

See also

• Presidential candidates, 2016
• United States Congress elections, 2016
• Process to fill the vacated seat of Justice Antonin Scalia
• 2016 presidential candidates on the death of Antonin Scalia and the Supreme Court vacancy
• Members of Congress on the death of Antonin Scalia and the Supreme Court vacancy
• Antonin Scalia
• Merrick Garland
• Supreme Court of the United States
• History of the Supreme Court
• Major cases of the Supreme Court October 2015 term
• Supreme Court cases, October term 2015
• What happens to this term's major SCOTUS cases in a 4-4 split?