How the election may affect the Supreme Court's current docket

|The Volokh Conspiracy |

There's no question that the election of Donald Trump as the 45th president will have an influence on the Supreme Court. In all likelihood, President Trump's nominee will replace Justice Antonin Scalia on the court sometime next year. In addition, President Trump may have the opportunity to name additional justices during his term in office. A less obvious way in which the election will influence the court will be in what cases the court hears. The solicitor general's office is quite influential in recommending (or opposing) certiorari and has an outsized effect on what cases the court hears, as well as on the way certain cases are presented to it. A Trump administration will, in all likelihood, bring a different set of priorities to bear in the certiorari process than has the Obama administration.

In addition, as Josh Blackman notes, a Trump administration is likely to change the federal government's posture in several cases that would have otherwise reached the court, including U.S. v. Texas and the continuing contraception mandate cases. Other cases, such as the challenges to the Clean Power Plan and the Waters of the United States rule may also disappear if, as expected, the administration follows through on promises to drop these controversial regulations. Note, however, that reversing course on some regulatory initiatives will require a bit more than filing a new brief or confessing error. In the case of the CPP, for instance, the new administration will likely have to go through a rulemaking to undo the statutory interpretations and legal findings upon which the program is based.

This year's election could also affect one of this term's more high-profile and controversial cases: Trinity Lutheran Church v. Pauley, concerning the constitutionality of a state law that excludes churches from a secular state program (in this case, funding for safety improvements and playgrounds). As discussed here, the case concerns a Missouri state law. The newly elected Missouri attorney general, Josh Hawley, has been quite critical of the law and filed an amicus brief arguing that it is unconstitutional. At the very least, Hawley's election means the court will need to find someone else to defend the law, a move that could require new briefing and push the case off until next term. It's also possible that certiorari would be dismissed. Either way, the case is unlikely to be decided by eight justices—something it appears the court was trying to avoid as the case had not yet been scheduled for oral argument, even though certiorari was granted back in February, before Justice Scalia's passing.