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November 14, 2019


The election could determine the Supreme Court’s transgender bathroom case

WASHINGTON — The Supreme Court’s order blocking a transgender male from using the boys’ restroom at his Virginia school underscores how the presidential election results will shape the high court.

One of the court’s nine seats has been vacant since Justice Antonin Scalia died in February, and as many as three older justices could retire in the coming years.

The sometimes-polarized court won’t decide what to do about the transgender bathroom case until around the election, and possibly months later. The justices probably will know by then whether the person picked to succeed Scalia will push the court to the left or to the right.

The transgender issue is just one of many high-profile social and political issues on which the new ninth justice could hold the decisive vote.

President Barack Obama has nominated Judge Merrick Garland to fill the vacancy, but Senate Republicans have blocked action, preserving the open seat in case Republican Donald Trump wins the presidency.

Both Trump and Democrat Hillary Clinton have spoken about the court’s importance in their campaign appearances.

“Imagine if Hillary Clinton picks five super libs,” Trump said in Virginia this week, suggesting that the next president could fill as many as five seats, which seems unlikely.

Clinton told delegates at the Democratic National Convention last week that that she would “appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them.”

Clinton raised two issues on which conservatives, with Scalia, held a majority in recent years. But if Garland or a justice of her choosing were in place, any new cases on those issues could come out differently.

So, too, on Obama’s efforts to help millions of immigrants living in the U.S. illegally, one of the four cases in which the court split 4 to 4 since Scalia’s death.

Justice Ruth Bader Ginsburg said in a recent interview that the next administration could bring that case back to the Supreme Court. “By the time it comes here, we will be nine,” she said in the same interview in which she said she didn’t want to think about the possibility of a Trump victory.

Trump has said that if elected president, he would act to deport immigrants who are in the U.S. illegally. That probably would end the legal fight over Obama’s executive actions. Clinton has pledged to expand on Obama’s efforts.

Some conservative and libertarian legal scholars have weighed in online in recent days at the invitation of Reason magazine senior editor Damon Root about whether Supreme Court vacancies justify a vote for Trump, in spite of concerns over his candidacy.
The transgender issue is just one of many high-profile social and political issues on which the new ninth justice could hold the decisive vote. Georgetown University law professor Randy Barnett, a key player in the 2012 challenge to Obama’s health overhaul, said the court vacancies “may well be the only good reason to support Trump. Whether that reason outweighs all the other negatives is a much tougher judgment.”

In the transgender bathroom case, liberal Justice Stephen Breyer surprised some legal commentators by joining his four more conservative colleagues Wednesday in siding with the Gloucester County School Board. The board is appealing a lower-court decision in support of student Gavin Grimm.

But Breyer stressed the temporary nature of the order, pending the short-handed court’s fuller consideration of the case. He also said he was providing the majority-making vote as “a courtesy” that he said would allow the school board’s bathroom policy to remain in effect for the time being, not as an expression of his views on the topic. The other three liberal justices voted to deny the school board’s plea.

The justices also could soon be asked to block an appellate ruling striking down North Carolina voting provisions, including the state’s voter ID law. If the high court is evenly divided, the ruling would remain in effect. Breyer, who dissented in a 2008 ruling upholding Indiana’s voter ID law, is less likely to provide a fifth vote to keep the North Carolina law in place, especially after appellate judges said it was enacted to make it harder for African-Americans to vote.

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