Wilson R. Huhn

Document Type



The last forty-six years may be accurately described as the era of the modern Republican Supreme Court. As a result of presidential elections, Republican presidents have nominated all ten of the Justices appointed to the United States Supreme Court between 1969 and 1991. Republicans have thus controlled the Court since 1970. During this period the right to gender equality was recognized and the right to marriage equality was realized. However, also during this period many Republican Justices staunchly opposed gender equality, and far more remains to be accomplished.

Since Justice Scalia’s death, the Supreme Court has been deadlocked on a number of Constitutional questions. Accordingly, his replacement on the Supreme Court, now dictated by the 2016 presidential election, will have a dramatic effect on the interpretation of the Constitution, including a number of issues relating to gender equality. President Barack Obama nominated U.S. Court of Appeals Judge Merrick Garland to replace Justice Scalia on the Court, but Senate Republicans, fearing loss of control of the Court for perhaps both political and economic reasons refused to consider Judge Garland’s candidacy or to even hold hearings on his nomination. Newly-elected President Donald Trump has nominated U.S. Court of Appeals Judge Neil Gorsuch to fill Scalia’s position on the Court.

The “swing justice” on the Supreme Court since 2006 has been Justice Anthony Kennedy. If a conservative justice like Judge Gorsuch is appointed to replace Justice Scalia, Justice Kennedy will remain the swing justice. If President Trump is given the opportunity to fill more than one vacancy on the Supreme Court, the balance will tip even further; the swing justice might be Chief Justice Roberts for the conservatives or Justice Elena Kagan for the liberals.

Even in cases where changing the ideological balance of the Supreme Court would have no effect on the outcome of a case, it could have a dramatic effect on the Court’s reasoning, because it might change which justice would author the majority opinion. For example, in the marriage equality cases, if the vote had been 6-3 instead of 5-4, the author of the opinion might have been Ruth Bader Ginsburg instead of Anthony Kennedy, and the Court might have recognized sexual orientation as a suspect classification and declared that laws that intentionally disadvantage this group are subject to heightened scrutiny