Trump pick could set tone of Supreme CourtReprints
Employers are likely to find a U.S. Supreme Court that is more amenable to their interests with the naming of an appointee by President-elect Donald Trump to the vacant ninth spot on the high court, experts say.
Important employment-related issues that could be headed to the high court include the permissibility of class action waivers in employment arbitration agreements.
Mr. Trump’s inauguration next month also could end the backlog of other federal judicial appointments because he may not face the same opposition to appointments that President Barack Obama did, given that Republicans control the Senate.
But the biggest decision will be who will take the open ninth spot on the Supreme Court.
The list of 21 potential Supreme Court nominees that Mr. Trump floated as a candidate during the campaign “were quite well-regarded justices. I have no reason to believe” he will not select someone from that list, said Frank C. Morris Jr., a member of law firm Epstein Becker & Green P.C. in Washington.
A new justice would be expected to reflect a different judicial philosophy.
“The Obama administration governed through executive order and regulation,” said Michael J. Lotito, co-chair of Littler Mendelson P.C.’s Workplace Policy Institute in San Francisco.
“Mr. Trump is going to be able to select someone who, I think, is going to be much more aware of the importance of separation of power,” he said.
Employers should “just imagine that Justice Scalia was still alive,” in speculating how the court will act with a Trump appointee, said Richard B. Cohen, an attorney with FisherBroyles L.L.P. in New York.
“More likely than not, the nominee is going to be the ilk of Scalia, who will look at statutes and interpret them narrowly rather than broadly,” said Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago.
But there may still be surprises in store.
There is a history of Supreme Court justices ruling in ways that would have been unexpected of them at the time of their appointments. Justice David Souter, for example, was named to the court by Republican President George H. W. Bush but joined its more liberal wing.
And while Justice Scalia was conservative, he did write the 1998 Oncale v. Sundowner Offshore Services Inc. ruling, which held same-sex sex harassment was unlawful under Title VII of the Civil Rights Act of 1964.
Not everything the court will issue may necessarily be “employer friendly,” said Eric B. Meyer, a partner with Dilworth Paxson L.L.P. in Philadelphia.
Another issue is potential retirements among the eight judges still on the court, say experts. Justice Ruth Bader Ginsburg, for instance, is 83, and Justice Stephen Breyer is 78. Both are on the liberal wing of the court. Justice Anthony Kennedy, who often casts the deciding vote between the liberal and conservative wings, is 80.
There is the issue of “who remains on the court in terms of older justices deciding whether or not to call it a career or hang on, and how that influences their horse trading with other justices in terms of trying to find common ground,” said Mr. Maatman.
The court will potentially either soften its stances or become more polarized “depending on who the first nominee is and when or if they get approved,” he said.
There are vacancies elsewhere because the Senate “has really made it a habit to block liberal appointments,” said Richard R. Meneghello, a partner with Fisher & Phillips L.L.P. in Portland, Oregon.
“Those are the kind of changes that are subtle and silent, but have huge implications for years to come,” he said.
According to the U.S. judicial system’s website, there are 103 vacancies on federal courts, including 13 on U.S. Courts of Appeal and 81 on U.S. District Courts.
In addition to the U.S. Supreme Court vacancy, there are two on the U.S. Court of International Trade and six on the U.S. Court of Federal Claims.
Nominees are pending in 59 cases, or more than half, including the Supreme Court.