A Supreme Court appointment is Trump’s one stone; but which two birds will he hit?

On 9^th November 2016, we witnessed one of the most shocking political events in the world. The election of Donald trump as the 45th President of the United States of America.   Trump who has been labelled “sexist”, “racist” and “misogynist” from his controversial comments on public matters got the majority Electoral College vote, putting him in the prime position to lead America for the next four years after his inauguration in January 2017.  

As President, the American Constitution grants him the powers to appoint Supreme Court Justices, his choice though, is subject to approval by the Senate according to Article II Constitution, 1787. He therefore has the main influence on who is going to occupy the position and create imminent precedents for the lower courts to follow. This affirms the vital role of the United States Supreme Court in shaping social and political relations in America. “Being the court of last resort, the Court’s decisions are definitive and their precedents are binding.” as remarked by Pawell Laidler an American Jurist and Professor of Law. 

The Court has demonstrated overtime an instrumental role in public discourse through judicial review. Judicial review is the power of the court to decide upon legality/constitutionality of acts executed by other branches of the government. This was laid out in the landmark case of Marbury v Madison 5 U.S. 137 (1803) where the Justices established the “Court” as the final authority on the meaning of the Constitution. One would therefore ask the question, what does the Supreme Court, an extension of the Judicial Arm of government   have to do with Donald Trump?

Prior to the final stages 2016 United States Presidential election, the American legal fraternity lost one of the Supreme Court Justices, Antonin Scalia, creating a vacuum at the highest Appellate Court in America. He (Scalia) was more profound for his originality and textualist approach (largely conservative) of constitutional interpretation.  His infamous dissenting opinion in the Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al 576 U.S. refuted the  claim to “super legislative” power when the Supreme Court that declared  federal laws  prohibiting same sex marriages unconstitutional.  He maintained, that the nine (9) Justices did not have the mandate to decide the question of gay marriages on behalf of the “people”.  Shortly after this decision, he passed away and this has led to wide speculation on who would replace him.  

According to Kenneth M. Holland, “the United States Supreme Court is the most pro judicial activism court/ tribunal on earth…” In 2015 (Ogberfell v. Hodges. supra), the Court interpreted prohibition of gay marriages in federal laws as unconstitutional because they violated the 15^th amendment to the American Constitution. This is just one of the instances all through political history in America, where the Supreme Court has dictated the center of political and civil liberties.

Further, judicial activism is the most powerful tool in setting right the historical injustices that oppress minorities. It took judicial activism to eliminate segregation in schools in America in Brown v. Board of Education of Topeka 347 U.S.483 (1954), “taking America into a social revolution more profound than any other political institution has or could have begun.” As reported by Dworkin, R. (1986) in his book Law’s empire. 

It also took a Supreme Court decision in Roe v. Wade 410 U.S. 113 (1973) to guarantee the freedom of personal choice in family life as one of the liberties protected by the “Due Process Clause”, summarily outlawing the penal sanctions on abortion in several states. These are only but a fraction of the decisions where we have seen the court define and construct new paradigms in the interpretation of the law. It is therefore not an understatement to aver that the seating justices of the Supreme Court and whoever President Donald Trump nominates are not only crucial but significant in the development of American law.

There are several issues that are to be addressed by the Court in the “post-election” era,  the question of trans gender rights,  the review of Obama’s “populist” immigration policy and the Affordable Health Care Act which if not repealed by the House of Representatives will most definitely be litigated in that regard. Affirming the proposition that the Supreme Court’s role is significant.

Whether Trump will use the Supreme Court Justice appointment to improve relations with voting blocs that the Republican Party struggles with for instance Latinos and the African American Community? Considering that G.W.Bush appointed Justice Clarence Thomas partly because his party was starting to be viewed as “anti-black.”

Whether he will use this nomination to take an affirmative action/pro gender equality stance while considering who to appoint?  Barack Obama was purposeful with this when he appointed Associate Justices; Elena Kagan and Sonia Sotomayer (Trump appointing a woman would arguably be a rebut to his misogyny label) 

Will Trump consider a nominee who would be in favour of reversing Roe v Wade supra, to set the ball in motion by considering a Pro-Life Jurist to limit the scope of abortion?

Inevitably, one of the first questions that Trump will have to resolve as President elect is the nomination of Supreme Court Justice, and this may be a more “political” move  and could prove pivotal for Trump’s approval in a largely divided America.

This article was published in the Daily monitor on 11th November 2016.

Daily Monitor- Commentary by Joel Basoga