Press Office

Comment: Joshua Jowitt gives a legal persective

Comment: Johsua Jowitt gives a legal perspective on the US election

Published on: 11 November 2016

Johsua Jowitt, Teaching Fellow at Newcastle University Law School, looks at the effects Trump's victory could have the legal landscape of the US.

Popular vote

"It is fair to say that the election of Donald Trump to the presidency of the United States came as a surprise to most pundits and election-watchers. Yet the time for introspection is over; instead, it may be beneficial to look to the future and ask about what effects a Trump presidency may have on the legal landscape of the US.

Firstly, it should be pointed out that – although winning the majority of the votes available in the Electoral College – Mr Trump did not win the popular vote. The latest figures indicate that this honour went to Hillary Clinton who, at the time of writing, won almost 300,000 more votes than her rival. Whilst this may seem like an unjustifiable oddity, it is not the first time that the person who gained the most votes failed to secure the presidency – most recently, George W Bush gained fewer votes than Al Gore in 2000, yet took the White House. The perceived unfairness of this result is the driving force behind the protests currently taking place across the country – protests which have sadly turned violent in Oregon, leading the police to declare a riot.

The stars and stripes over an image of the USA
America has voted

Voter apathy

The perceived unfairness is compounded by a second observation, namely what appears to be a low turnout. Current projections place this at around 56.9%, down from 62.3% in 2008 and 57.5% in 2012, and although wide variations exist between states – a high of 74% in Minnesota compared with just 45% in California – a downward trend appears to be emerging.  This voter apathy compounds the dissatisfaction felt by many in the Hillary camp over the legitimacy of the result, and will likely increase calls for reform of the Electoral College system.

Several states have already enacted legislation aimed at the future implementation of a remarkable initiative known as the National Popular Vote Interstate Compact (NPVIC), whereby all electoral college votes from that state will be allocated to the winner of the popular vote nationally rather than the winner within the State concerned.

Such a measure is unlikely to gain much support from those in favour of the status quo however, who perceive it to be akin to a gerrymandering manoeuvre by the Democrats to give more leverage to their urban strongholds. Such an analysis appears to have grounding, given that the majority of states committed so far are indeed from the Democratic heartlands of New England and the West Coast. Yet it is worth noting that the crucial swing states of Pennsylvania and Michigan currently have pro-NPVIC bills passing through their state legislatures. This initiative is certainly one to watch. 

Checks and balances

Lastly, it is worth addressing the role of the Supreme Court under a Trump presidency. Appointments to the Supreme Court are proposed by the sitting president; the idea here is that opinions from across the political spectrum are represented on the bench, leading to an accurate representation of popular opinion within the judiciary. Yet this accommodation of political concerns has recently lead to deadlock; eight judges currently sit on the bench, following the refusal of the Republican dominated Congress to approve President Obama’s nomination of Merrick Garland.

The nomination will now be Trump’s to make, and he has suggested that he will fill the vacancy with a suitably conservative voice. This will tilt the political allegiances of the court to 5-4 in favour of Republican appointees. Now add to this the very real possibility that two sitting Democratic appointees – Justices Ruth Bader Ginsberg and Stephen G Breyer, aged 83 and 78 respectively – are approaching their retirement, and we have the very real possibility that the bench will be highly conservative in its outlook with a safe 7-2 majority.

This will be of concern to many Americans, as – given it is incredibly difficult to amend the US Constitution - many rights citizens currently enjoy are currently grounded in the jurisprudence of the Supreme Court rather than their explicit authorisation by the Constitution.

A good example here is the right to have an abortion, which stems from the Court’s expansion in the 1973 case of Roe v Wade of a right to privacy found in the Due Process Clause of the Fourteenth Amendment. This could conceivably be overturned by a more conservative court, which would render the provision of abortions to vulnerable women unconstitutional across the United States.

Similarly, the legal foundation of gay marriage is founded on a similar reading of the same clause in the recent case of Obergefell v Hodges, and is therefore equally vulnerable should we see a more conservative court.

A strong system of checks and balances exists in the American Constitution which, in theory, should protect citizens from interference with the rights to which they are entitled. Yet when the scope of the Constitution is ultimately dependent on the makeup of the Supreme Court, then we may be in for a rocky ride.


Latest News