Trump's impact on abortion, gun rights could grow in time
President-elect Donald Trump's influence on some of the country's most vital constitutional issues is likely to be limited in the short term, growing only if he gets more than one pick for the U.S. Supreme Court.
Trump has one appointment available to him as soon as he takes office, thanks to Republican senators intransigence on approving Barack Obama's choice, Merrick Garland.
But he has sworn to appoint only conservative judges, and if the High Court loses a sitting member the balance could swing.
"It's realistic President Trump could have several appointments over the longer term," said Delaware Law School Dean Rod Smolla. "How that will impact the court will be a function of who the departures are and whether, over time, Republicans continue to control the Senate."
The sitting Supreme Court consists of eight justices, down from nine following the death of Antonin Scalia in February. It is roughly split between justices viewed as conservative and liberal and without a ninth, it is susceptible to deadlock, which sends the decision back to lower courts.
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The national consciousness when it comes to the Court is focused on a handful of issues such as abortion, gay marriage and gun rights. Current law favors liberals' position on the first two and rulings on the second two have gone conservatives' way.
"We have the White House, we have the Senate, we have the House and we are going to have the Supreme Court," said Rob Arlett, chairman of Trump's Delaware campaign. "That hasn’t happened in a very long time and it is exciting to think about what is accomplishable with that."
Specifics about what Trump wants to accomplish remain unclear, said Stephanos Bibas, director of the U.S. Supreme Court Clinic at the University of Pennsylvania Law School.
"Trump himself has been all over the map on abortion has been the most gay-friendly Republican candidate in recent memory," Bibas said noting that Peter Theil, a gay executive, addressed the Republic National Convention this year.
"He has not signaled these are issues that matter to him, but the question remains what if he hands over the Department of Justice to activists who do?" Bibas said.
As president, Trump cannot bring any of these issues before the Supreme Court, but his Attorney General and Department of Justice attorneys will have that authority.
On abortion
In 1973, the Court ruled the right to privacy implicit in the 14th Amendment extended to a woman's right to have an abortion with a state's right to regulate the practice limited to the third trimester. That decision was reaffirmed in the 1992 decision of Planned Parenthood v Casey.
"The core of Roe has been settled," Smolla said. It would be a dramatic decision to revisit that again. No one can know. If Mr. Trump were able to appoint three or four justices, anything is possible. But it strikes me that if he has just one or two appointments it's improbable Roe would be overruled."
Trump's position on abortion became decidedly pro-life as he entered the political sphere, and Vice President-elect Mike Pence is well known for his Christian values and social conservatism. Trump now believes exceptions for abortion restrictions only should include cases of rape, incest and those in which the mother otherwise would die.
A September Trump letter to "pro-life leaders" promised he would nominate pro-life justices, end late-term abortions, de-fund Planned Parenthood and keep taxpayer money from going to abortions.
Burton Caine, who teaches constitutional law at Temple Law School, said even if a Trump Court doesn't reverse Roe, it could impose enough restrictions to make it difficult for a woman to get an abortion.
"Roe v. Wade says a woman has a fundamental right under the due process clause to get an abortion," he said. "The government may not prevent that, but it can regulate it to the point of almost stopping it."
On gay marriage
Trump has not always been clear on gay marriage.
After 2015's decision in Obergefell v. Hodges made same-sex marriages legal across the country, Trump declared the issue settled despite his opposition to its results. But he also has promised to appoint justices willing or eager to overturn that decision.
"If I'm elected, I would be very strong on putting certain judges on the bench that I think maybe could change things," Trump said in January. "They have ruled on it. I wish that it was done by the state. I don't like the way they ruled."
But never before in the United States has a civil right once given ever been taken away.
On gun rights
Trump is for gun rights and so are most conservative-leaning possibilities for filling vacant court seats.
A campaign promise on Trump's website reads: "Nominate United States Supreme Court justices that will abide by the rule of law and the Constitution of the United States that includes upholding the Second Amendment."
"The Second Amendment has been a five-to-four lineup on the court with Justice Scalia in the five," Smolla said. Mr. Trump winning keeps the Second Amendment secure in the way it's been the last 10 years or so."
Bibas said Trump's defense of the Second Amendment has been a hallmark of his campaign.
"Of the three major issues, the one that is most predictable is gun rights," he said.
Contact Adam Duvernay at (302) 324-2785 or aduvernay@delawareonline.com.