2016 Postmortem

Except for one sliver of constitutional law applicable in criminal cases, Justice Scalia was as far to the right as you can get. Regardless of who he appoints to fill the Scalia vacancy, the balance in the Supreme Court will not change.

Of those 102 remaining vacancies, only 13 are on the Circuit Courts of Appeals (where federal law is primarily made/interpreted) and none of those vacancies will change the balance of the en banc court in any circuit. The fact of the matter is that, while many are bemoaning the fact that Harry Reid eliminated the filibuster for non-S.Ct. judicial nominees, Obama was able to leave a lasting legacy in the courts of appeals.

The remaining vacancies are in the district courts where any legal decision a Trump judge would make would be subject to de novo review in the courts of appeals and every factual decision a Trump judge would make would affect only the particular case before them. Now that sucks for the litigants in that case, but it doesn't "reshape" anything.

The tragedy of Trump is not that we face a rollback of Obama-era S.Ct. decisions, but that we lost a potentially once in a lifetime opportunity to reverse some really horrendous decisions. Citizens United was 5-4, with Scalia in the majority (in fact, even though Buckley v. Valeo - which gives a millionaire a million times more political free speech than a person with a dollar in his pocket - was not 5-4, many of the fractured concurring opinions which were cobbled together to get a majority decision were actually close to saying that money does not equal speech). Shelby County, the VRA decision, was 5-4 with Scalia in the majority. Heller, the 2nd Amendment case, was a 5-4 decision with Scalia in the majority. Hobby Lobby was a 5-4 decision with Scalia in the majority. We could have changed this country for a generation and we failed.

As sad as that is, however, it doesn't mean that Trump can reshape the federal courts.