Six Takeaways About the Supreme Court from Last Night’s Election

1) The Supreme Court weighed heavily on the minds of voters yesterday, and was particularly important to Trump’s voters.  The exit polls showed more than one in five voters responding that the Supreme Court was the most important factor in their vote. Those voters broke significantly for Trump.  I’m not sure there is any precedent for the Supreme Court making such a major impact on a presidential race.
2) Trump did something unprecedented: he circulated a list of nominees from which he would select Supreme Court justices. That move clearly played a part in reassuring voters that he would take seriously his responsibility to nominate justices for lifetime appointments on the most powerful court in the land.
3) The Court is only at issue due to the leadership of Senate Leader Mitch McConnell and Judiciary Chairman Chuck Grassley, as well as the fortitude of the other Republican Senators.  Thanks to their hard work, the people were given a voice in who will choose Justice Scalia’s replacement, along with a likely several additional Supreme Court Justices.
4) Last night’s election results were a stinging rebuke to the preemptive surrender by Senators like Jeff Flake and Mark Kirk, Republicans who advocated confirming Garland.
5) Given the significance of the Court to Trump’s voters, I’m confident that he will stand by his campaign promise to appoint someone from his excellent list of constitutionalist judges.  While that still would leave the Supreme Court in a 4-4-1 balance, with Justice Kennedy as a swing vote, Trump is likely to have the opportunity to appoint additional justices, who can ensure that the Constitution is interpreted according to its text and original meaning and isn’t used as a vehicle for political policy goals.
6) On Inauguration Day, nearly half of the seats on the U.S. Courts of Appeals will be either vacant or occupied by a judge eligible to take senior status.  I look forward to seeing President-elect Trump continue to identify highly-qualified and principled nominees for these seats.  As important as the Supreme Court is, the vast majority of cases are decided in the lower courts and their importance cannot be overstated.