Below is my column in Fox.com on the impact of the reelection of Donald Trump and the flipping of the Senate for the Supreme Court. The election may have proven one of the most critical for the Court in its history.
Here is the column:
In 1937, it was said that a critical shift of one justice in a case ended the move to pack the Court by Franklin Delano Roosevelt. It was described as the “shift in time saves nine.” In 2024, a shift in the Senate may have had the same impact. Trump’s victory 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 Kamala Harris’s reported support, the Supreme Court dodged one of the greatest threats to its integrity in its history.
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.
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 the 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.
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.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.” He teaches a course on the Constitution and the Supreme Court.
Getting a little concerned about the prospect of a Sotomayor/Harris switcheroo in advance of the change in administrations.
Here is an update on the Supreme Court retirement speculation. https://www.nationalreview.com/news/leonard-leo-pushes-back-on-speculation-about-justices-alito-thomas-retiring/
Bravo, Professor Turley! Let’s welcome the increasing Rage from the Left; A continuing reminder we must be eternally vigilant in the protection of our Rights and Freedoms!
Progressive: “The Constitution is Hamstringing Government”
Justice Clarence Thomas: ” CORRECT”
The People’s view of the Constitution: “We the People……”
Left’s View: ‘Toilet Paper’
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Here’s the latest excuse for why D’s lost:
“Joe Biden should have stepped aside much earlier and acknowledged his infirmities much sooner.”
That really is amusing.
D’s and their media lackeys spent all that time attempting to deny reality: “Biden’s fine. . . .”
Now they’re complaining about the fact that they have to pay the price for denying reality.
Yes, the D’s were soundly rejected by the electorate. But more fundamentally, they were rejected by the facts of reality.
Well similar to Hamas, just like that, the dems want peace now and a spirit of cooperation, all working together singing Kumbaya and insider trading. While bristling their tale fur declaring the reason they lost is because the red tsunami of historic proportions was all of us White supremacists, Black misogynists, White Karen’s, racist Hispanics, and apparently to include a few traitorous them’s, and they’s, and him-ha’s and her-ha’s, Christian Nationalists, (they have a problem blaming illegal alien votes see), and then they bellow out, “Oh and we’re still going to get Trump” nonsense. Pretty much was all our fault, not theirs of course. Nothing to do with the vast majority clearly saying; We’re not buying what the dems are selling, and the danger to democracy is the dems themselves!
OT:
Given the horrific anti-semitism expressed across the country by Leftists / Democrats / Harris, Trump should have captured, at a minimum, 90% of the “Jewish” vote. Instead he got ~20%. Pathetic. Cafeteria Catholics have historically been poor excuses for religious faithful. Perhaps there is hope for them. Jews need to get on it and catechize their own.
Say, That’s Quite a Coalition You’ve Got There: Digging into some of the details of Trump’s historic win
The Jewish vote. After capturing 30 percent of the Jewish vote in 2020, this time Trump got 19 percent, according to NBC News, 21 percent according to ABC News, and 32 percent according to Fox. (It’s not clear why the Fox estimate shows such a large disparity.)
…
Catholics. Trump won only 47 percent of the Catholic vote in 2020 but got 60 percent this time.
https://www.city-journal.org/article/say-thats-quite-a-coalition-youve-got-there
Faux News = CNN light.
“Trump ideally should have captured at least 90% of the Jewish vote, but instead he received only around 20%.”
The exit poll data, however, is inconsistent and often unreliable. For instance, one poll showing similar results of about 20% had a sample of fewer than 500 respondents, with none from New York. How can a poll leave out New York when obtaining Jewish data? When analyzing polls and studies, it’s essential to be mindful of selection bias.
Consider this excerpt:
“The Fox News voter analysis also found that 46% of New Yorkers identifying as Jewish supported Trump over Harris. For context, Trump received 37% of the Jewish vote in New York in 2020, while Biden received 63%.”
Another factor to consider is the diverse landscape of Jewish identity in the U.S. Many Jews are secular and aim to assimilate their Jewish heritage within broader American culture, sometimes keeping it understated. Within the Jewish community, political views are split: one poll found that Orthodox Jews were more likely to support Trump (65% for Trump, 35% for Harris), while Reform and Conservative Jews tended to prefer Harris (65% for Harris, 35% for Trump). Among those favoring Harris were individuals who may not practice Judaism or feel strongly connected to Israel, and some who may have limited awareness of their personal Jewish history.
I’ll wait for more reliable data to emerge as things settle down.
I know SOME Jews and cannot understand ANYONE who did not support either DJT or the state of Israel! While I breath, I WILL SUPPORT ISRAEL!
Western Zionists are in complete denial how popular is anti-Zionism among Israeli citizen Jews. Unlike in the West, anti-Zionist Jews (EVEN ISRAELI RABBIS ARE MEMBERS OF THIS GROUP) in Israel are not universally deplatformed with their lives destroyed for the felony crime of sharing their opinions on this subject. (Admittedly, some Israeli anti-Zionists suffer retribution but it’s not as universal as it is in the West.)
It’s little known among Western Zionists that the day Netanyahu leaves office is the day he’s arrested for criminal corruption in Israel. Plenty of Israeli citizens who lost their relative hostages would like few things as much as seeing Netanyahu in shackles.
Some of the world’s most respected independent geopolitical scientist PhD’s make a superb case that Israel’s political class’s prohibition of a Palestinian State is ultimately bad for everyone including Jews, Americans, etc. See The Israel Lobby. .
Everybody is ignoring the most important question facing America. Here it is:
What happened to the 15,000,000 voters? They have vanished!
I noticed what you pointed out yesterday and have the same question! If you have the time, do the same analysis by state and see if the extra votes can be attributed to just a few states. Especially the “battleground” states vs the non-battleground states.
Good question. It’s a bit too soon for a state-by-state comparison to provide answers as to which states had apparently “vanishing” votes. The full count results aren’t in for many states. When they are, I’m sure an analysis will be done. And in the unlikely event such an analysis isn’t published, I’ll do it.
Some say that Sotomayor should retire now so that Biden can appoint replacement — see article. https://www.newsweek.com/sonia-sotomayor-faces-renewed-calls-retire-after-trump-win-1982481
I don’t get it. The overriding objective of all Americans is that pregnant mothers kill their babies. How did Kamala lose?
* They’re sharp alright. AND the public pays for it and not the deadbeat male.
Jonathan: Could you please explain to us what “infirmities” Dennis McInliar is referring to here?:
Joe Biden should have stepped aside much earlier and acknowledged his infirmities much sooner.
—-Dennis McInliar, the dememnted draft dodger
As I recall, just 8 weeks ago, Dennis was telling us how Joe Biden was as fit as a fiddle, and showed no signs of dementia or Parkinsons.
Just 6 weeks ago, Dennis was heralding Joe as an American hero, for stepping down when he did. Now he is blaming poor Joe for the most lopsided election loss in recent memory.
You know Denny better than the rest of us. Has he lost what was left of his mind, now that the thing he claimed could never happen, has?
* Trump has a huge job. Pray that he is surrounded by good and honest helpers. If 75 percent of the population is honest and interested in getting this big machine up and running then it can be done. If not then not.
1.The political system is in place.
2.The economic system is not in place. His focus will be there.
3. International peace focus is Israel.
4. Kick the UN out.
5. Stop all funding internationally. No arms sales.
Pray for helpers.
Merry Christmas ☺
“Trump has a huge job. Pray that he is surrounded by good and honest helpers.”
That is up to Trump more than God. If you want to pray about something, pray that he learned some valuable lessons from some of the mistakes he made in his appointments in his first go around. I am hopeful of that, as I see some signs that he learned some other lessons. For example, he appears to understand that he must occasionally *show* some humility, whether or not he actually feels it. The proof, however, will be in the pudding.