Donald Trumps defeat of Hillary Clinton was a surprise to all but the most devoted Trumper. As such, his victory has overturned both the Left and the Right’s vision of how the fight for the Supreme Court will look like for the next four years.The Left foresaw a scenario where they would have to nuke the filibuster to push President Clintons nominees past Republican resistance. They were counting on a Clinton administration appointing up to three justices to the high court, flipping it from conservative to progressive in four short years.
The Right, led by Senator John McCain had already vowed to block any Clinton nominee. The logical outcome of this strategy according to conservative Constitutional scholar Ilya Shapiro would be to let the court die, which he argued would be within the Senate’s authority.
Now that both these scenarios have been made moot by Trump’s win some on the Right would like to shift their focus away from the court to other issues. This would be a mistake as we have seen with Obamacare, even an ostensibly conservative court is not guaranteed to limit the power of the Federal government.
Instead the Right should take advantage of Trumps victory to shake up the status quo by using the fear the Left has about the prospect of there being a conservative Supreme Court for the foreseeable future. When they think about that they must fear that Roe Vs. Wade and many of their other cherished decisions would be at risk. This should make them ready to use any avenue they can to make sure they can stop that from happening.
For this reason the Republican leadership should start pushing the idea of a constitutional amendment to give Congress and the States a check on the Supreme Court. A template for such an amendment already exists, having been proposed by Mark Levin. His amendment would allow Congress or the States the ability to overturn any decision of the court with a 3/5 majority vote.
As it stands right now Republicans would only need 15 Democrat votes in the Senate and 48 in the House to get the necessary 2/3 majority needed to propose an amendment to the States. Republicans being in control of 37 State legislatures means they would need to flip just one of 13 Democrat controlled States to ratify any proposed amendments.
For Democrats this election has created a crisis and as Rahm Emanuel said “a crisis is a terrible thing to waste” it would behoove Republicans to heed their advice and not waste this ‘crisis’.