Hillary Clinton may win the White House – but the battle for the Supreme Court will continue

The implication is that Republicans, even if they lose control of the Senate on 8 November, will filibuster any Clinton candidate to death

The FBI has decided to re-examine evidence relevant to Hillary Clinton’s email servers

Grim prognostications already fill the air. Think the election’s been terrible? It’s only going to get worse. Trench warfare between Congress and the White House will intensify, they warn, signifying yet greater dysfunction in US politics.

Such is the standard wisdom in Washington right now, along with the expectation Hillary Clinton will win on 8 November, and take office as the most distrusted, suspicion-shrouded president of modern times. And there’ll be one very early indicator of whether the pessimism is correct: what happens with the Supreme Court.

Given that a president appoints its members, the Court’s future inevitably looms large over every election. But never more so than in 2016 – for two reasons. The failure of Congress to perform means that the judicial branch is now the second most influential of the three branches of US government, after the White House itself. Second, the Court itself is at an ideological turning point. If Clinton does become the 45th president, she may well have the chance to create the first reliably liberal court since 1971, when Richard Nixon was in office. The stakes, in short, could hardly be higher; and the potential for deadlock could not be greater.

But first an essential primer about how matters stand today. The Democratic White House and the Republican-controlled Senate which must confirm nominees to the Court have been at an impasse since the death in February of the conservative justice Antonin Scalia, which deprived the right of its longstanding five-four majority on the nine-member body.

President Barack Obama could have thrown down the gauntlet to Republicans by nominating a liberal as forceful and outspoken as Scalia. Instead he offered an olive branch by putting forward Merrick Garland, a centrist judge of impeccable credentials, respected by both sides, and who at 63 was not likely to stay on the Court for ever. Republicans however were having none of it.

Mitch McConnell, the Senate leader, refused even to consider the nomination, arguing that the American people should have their say on the matter, at the election. His calculation, of course, was that a Republican would win, and appoint a replacement for Scalia who ensured conservatives would retain their majority.

So the Court has soldiered on with eight members, and a proliferation of four-four tied votes that have prevented it from providing definitive rulings on a variety of important cases, involving abortion rights, immigration, and affirmative action. Now it looks as if McConnell’s calculation will prove wrong. It probably won’t be a Republican president sorting out the mess.

What happens thereafter is anyone’s guess. One possibility is that McConnell and his troops settle for the lesser evil. After all, Merrick Garland is still around. So why not go ahead with hearings and a confirmation vote in the “lame duck” session of the outgoing Congress, between the election and the installation of the new Congress? The judge would win, and the Court might tilt a little left. But he is surely a more palatable option than a newcomer picked by a President Clinton. There are just a couple of snags. McConnell has said that Garland is a non-starter, even in the lame duck session. More seriously, one new justice is probably only the start of it.

Supreme Court nominations are like London buses. You wait for ages for one, then two or three come along together. If history is a guide, Hillary Clinton will be a one-term president – only twice in the past 80 years has the same party held the White House for three consecutive terms. But even if she serves only four years, she might be filling three more vacancies.

Even the Supreme Court is not exempt from the laws of anno domini. Of the eight current justices, two of the liberal ones are 83 and 78 respectively, while Anthony Kennedy, the Court’s pivotal justice who usually votes with the conservative faction, is 80.

None have given a clear sign they intend to resign soon, but all have been on the Court for more than 20 years – in Kennedy’s case for more than 30. If the three did step down, Clinton would be in a position to shape the ideological stance of the Court for decades – a legacy that might extend long after she has departed this earth.

For Democrats it’s a dream. Yes, Supreme Court justices are supposed to be non-activist and apolitical, but such niceties went out of the window with the five-four conservative-liberal split on Bush v Gore in 2000 that handed that election to George W Bush. Today, everything is a piece in the great political struggle, especially a small group of judges appointed for life, often called upon to take decisions that Congress either can’t or won’t take.

So imagine a Court that enshrines once and for all Roe v Wade, guaranteeing a woman’s right to an abortion. Or one that reinstates campaign finance restrictions, acts decisively to promote affirmative action and supports other liberal causes. But the Democrats’ dream is the Republicans’ nightmare. And the latter sound as if they’ll do anything to prevent it.

Texas Senator Ted Cruz, runner-up to Donald Trump in the Republican primaries, has said eight justices are fine, implying his party will let new nominations just hang there in the wind. John McCain, the defeated Republican candidate of 2008 and arguably the party’s most prestigious figure, has declared that Senate Republicans “will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” The implication is that Republicans, even if they lose control of the Senate on 8 November, will filibuster any Clinton candidate to death.

Maybe this is mere bluster. Maybe a president Clinton and Senate Republicans will find common ground on the Court, that might even portend a thaw between the parties that would see them working together to solve the real problems facing America. Perhaps. More likely though, and especially after the FBI’s re-examination of new evidence in the Clinton’s private email server scandal on Friday, it will be open warfare – warfare that has us looking back to election 2016 as light relief.