WASHINGTON — The Supreme Court’s order blocking a transgender student from using the boys’ restroom at a Virginia school underscores how the presidential election results will shape the high court.
One of the court’s nine seats has been vacant since Justice Antonin Scalia died in February, and as many as three older justices could retire in the coming years.
The sometimes-polarized court won’t decide what to do about the transgender bathroom case until around the election, possibly months later. The justices probably will know by then whether the person picked to succeed Scalia will push the court to the left or to the right.
The transgender issue is just one of many high-profile social and political issues on which the new ninth justice could hold the decisive vote.
President Obama has nominated Judge Merrick Garland to fill the vacancy, but Senate Republicans have blocked action, preserving the open seat in case Republican Donald Trump wins the presidency.
Both Trump and Democrat Hillary Clinton have spoken about the court’s importance in their campaign appearances.
‘‘Imagine if Hillary Clinton picks five super libs,’’ Trump said in Virginia this week, suggesting that the next president could fill as many as five seats, which seems unlikely.
Clinton told delegates at the Democratic National Convention last week that that she would ‘‘appoint Supreme Court justices who will get money out of politics and expand voting rights, not restrict them.’’
Clinton raised two issues on which conservatives, with Scalia, held a majority in recent years. But if Garland or a justice of Clinton’s choosing were in place, new cases on those issues could come out differently.
So, too, on Obama’s efforts to help millions of immigrants living in the United States illegally, one of the four cases in which the court split 4 to 4 since Scalia’s death.
Justice Ruth Bader Ginsburg said in a recent interview that the next administration could bring that case back to the Supreme Court.
‘‘By the time it comes here, we will be nine,’’ she said in the same interview, in which she said she didn’t want to think about the possibility of a Trump victory.
Trump has said that if elected president, he would act to deport immigrants who are in the United States illegally. That probably would end the legal fight over Obama’s executive actions. Clinton has pledged to expand on Obama’s efforts.
Some conservative and libertarian legal scholars have weighed in online in recent days at the invitation of Reason magazine senior editor Damon Root about whether Supreme Court vacancies justify a vote for Trump, in spite of concerns over his candidacy.
Georgetown University law professor Randy Barnett, a key player in the 2012 challenge to Obama’s health overhaul, said the court vacancies ‘‘may well be the only good reason to support Trump. Whether that reason outweighs all the other negatives is a much tougher judgment.’’
