St. Francis School of Law constitutional law professor David Graubert shared his thoughts on the United States Supreme Court following the election results. “It’s a virtual certainty that at least the next appointment will be intended to restore the Court to the status quo ante following Justice Scalia’s passing.” Who will be appointed and how that will turn out, as well as what else is in store over the next four years very much remains to be seen. With just one replacement, Prof. Graubert predicts that the court is unlikely to shift much, if at all, in the short term.
Prof. Graubert describes himself as somewhat contrarian. He predicts that the President Elect is likely to fill Supreme Court vacancies with judges who are ideologically similar to the persons they replace. He does not expect that the Court is likely to reverse Roe v. Wade or the Obergefell decision. He further predicts that the second amendment law will not change substantially in either direction.
Graubert believes that affirmative action may come to an end, and that we will see a shift in the federalism balance to greater protection for states’ rights. As to First Amendment law, in the area of religious freedom, he sees the trend of moving to a more accommodationist view continuing.
For free speech and privacy protection, Prof. Graubert predicts that the libertarian bent of the Court is unlikely to shift – including in the campaign finance area. A wild card is conceivable in the area of incitement law, where legislation restricting “terror” related advocacy may be toughened further – and the Court could revise the long-time speech-protective Brandenberg standard.
Finally, both equal protection and separation of powers cases may arise in connection with immigration “vetting.” Also, to the extent that Obamacare is repealed, this may prompt new litigation. Too, in the area of separation of powers, we will likely see changes, particularly limits on executive actions. The liberal opposition, without a majority in either house of Congress, will surely use the courts.
Prof. Graubert says it will be interesting to watch the developments. As we move into the new year, he looks forward to sharing his insights with St. Francis School students during the class in Constitutional Law.