Election Day Is a Turning Point for Supreme Court

Lots of people who don’t otherwise care for Donald Trump or Hillary Clinton say they’re going to vote Tuesday based on which presidential candidate will be best for the U.S. Supreme Court. With the hours ticking away, it’s worth running through the three most plausible scenarios to see what the election outcome will mean for the court.

Most desirable for liberals will be if Clinton wins the White House and gets a Democratic majority in the U.S. Senate. If that happens, the lame-duck Republican Senate might or might not confirm the relatively moderate Judge Merrick Garland, President Barack Obama’s nominee to fill Justice Antonin Scalia’s seat. It will depend on what prevails: Senators’ strategic interests in keeping the court’s judicial ideology as conservative as possible or senators’ individual interests in preventing future primary challenges from the right. It’s perverse, but a Democratic Senate means Republican senators will know that they can wait until January to vote against any and all Clinton judicial appointees and still lose. That protects them from the criticism that they approved a nominee who will at least sometimes cast liberal votes.