Indiana Law Journal

Document Type


Publication Date

Winter 2018

Publication Citation

93 Indiana Law Journal 73 (2018)


In this Essay, I want to offer initial thoughts on what the Trump presidency is likely to mean for constitutional law. First, I want to focus on the lost opportunity: what might have happened had Hillary Clinton replaced Scalia and filled other vacancies on the Court. Second, I want to focus on the reality of what we are likely to see as a result of Neil Gorsuch replacing Antonin Scalia and of other possible vacancies being filled by President Trump. Finally, I want to discuss how progressives should react to this and to the foreseeable future of constitutional law. These, of course, are all illustrations of the costs of keeping the ideological balance that existed before February 13. But what also must not be forgotten is the opportunity that was lost on November 8. What might it have meant to have a majority of Justices on the Court who were appointed by Democratic presidents?

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.