California Forum

Three questions that will make the Constitution matter even more in 2018

The U.S. Supreme Court’s pending decision on partisan gerrymandering and the Senate’s response if Justice Anthony Kennedy, seated second from left, retires as expected, are among several matters that will place the Constitution at center stage this year.
The U.S. Supreme Court’s pending decision on partisan gerrymandering and the Senate’s response if Justice Anthony Kennedy, seated second from left, retires as expected, are among several matters that will place the Constitution at center stage this year. Abaca Press

The Constitution turns 231 years old in 2018 and yet my prediction is that it will be at the center of the most important stories to come out of Washington in the coming year, stories that will shape the future of our government for years and potentially even decades to come. Here are three to look for that could have enormous consequences.

What will happen with Robert Mueller’s investigation and what will President Donald Trump do?

In December, Trump and some Republicans were saying that they expected Mueller to wrap up his investigation by the end of the year. They surely could not have believed that. Over the last few months, Mueller’s investigation has made substantial advances with the guilty pleas and promised cooperation of Michael Flynn and George Papadopoulos. He also has indicted Paul Manafort and Richard Gates, with those matters yet to go to trial.

Donald Trump, Jr. and Jared Kushner soon may be implicated in the illegal contacts with Russia and lying about them. In the coming year, we will see if they too will be indicted. The ultimate question is whether all of this might lead to charges against the president or Vice President Mike Pence for obstruction of justice.

There is disagreement among scholars as to whether a president or vice president can be indicted and prosecuted, or whether impeachment is the sole remedy under the Constitution. In March 1974, the Watergate grand jury named Richard Nixon an unindicted co-conspirator because it did not know if it could indict a sitting president. Nothing since then, or for that matter nothing in American history, provides an answer to that question.

How the president will react to this will be a crucial story for 2018. There long has been speculation about whether Trump would order deputy attorney general Rod Rosenstein to fire Mueller and if Rosenstein refuses, to fire him and install someone who would get rid of Mueller. Legally, Trump has the authority to do this, but at what political cost and how will that affect his decision?

Will the U.S. Supreme Court allow federal courts to hear challenges to partisan gerrymandering?

The Supreme Court has two cases before it this year concerning whether federal courts may adjudicate challenges to partisan gerrymandering and if so, when the practice violates the Constitution. Partisan gerrymandering, where the legislature draws election districts to maximize safe seats for the incumbent party, has gone on throughout American history. But sophisticated computer programs make it far more effective than ever before.

Unlike California, which uses an independent commission for districting, in most states partisan gerrymandering occurs. If the high court disapproves the practice, it will significantly change the composition of the House of Representatives and state legislatures across the country.

Will U.S. Supreme Court Justice Anthony Kennedy retire?

Kennedy is 81 years old and there are rumors that he is considering retiring when this term of the Supreme Court ends in late June. Kennedy is the pivotal justice on the current court. Last term he was in the majority in 97 percent of all of the decisions and the year before in 98 percent of the cases, both by far the most of any justice. Although he votes with the four most conservative justices (John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch) more often than not, he also is the key fifth vote, such as to strike down restrictions on abortion rights and to uphold affirmative action programs.

If Kennedy does not retire this summer, the outcome of the November 2018 Senate elections will become even more important. The electoral map makes it difficult for the Democrats to take the Senate in November 2018; many more Democrats than Republicans are up for reelection and many of the Democrats are in red states. But if the Democrats take the Senate, and the election of Doug Jones in Alabama makes it more plausible, then no one Trump picks for the Supreme Court in the last two years of this term has a chance of being confirmed.

The Republicans refused to hold hearings or a vote on the nomination of Chief District of Columbia Circuit Judge Merrick Garland’s nomination to replace the late Justice Antonin Scalia. This undoubtedly will set a precedent that when the president and the majority of the Senate are of different political parties, no one the president nominates has a chance to being confirmed in the last two years of a term. Whether Trump gets another pick for the Supreme Court will be crucial for the court’s ideological composition for years to come and likely will be determined by what happens in 2018.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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