Republican candidate Donald Trump previously called the Supreme Court’s decision to legalize same-sex marriage nationwide “shocking,” suggesting that he would work to overturn the ruling if he was elected president.
President-elect Donald Trump, however, seems to have a slightly different perspective. Asked on 60 Minutes whether he would work to overturn the ruling, Trump said that he is “fine with” how the Court ruled. He not only called his own view on marriage equality (he opposes it) “irrelevant,” but he also said that “it’s done.”
“These cases have gone to the Supreme Court,” Trump said. “They’ve been settled. And I’m fine with that.”
While Trump may believe that, it’s not necessarily true that the issue can never be revisited by the Court. After all, Trump also suggested in the 60 Minutes interview that he would like to see the ruling legalizing abortions nationwide overturned. The Court could also reconsider marriage equality — and rule differently if Trump appoints a slew of conservative justices to the bench, as he has promised to do.
There is a very real possibility in the next four years that Trump will appoint as many as four justices to replace those who are either deceased or close to retirement due to their age. For one, he will surely replace the conservative and recently deceased Antonin Scalia. And he might be able to replace liberals Ruth Bader Ginsburg and Stephen Breyer and right-leaning centrist Anthony Kennedy.
When the Supreme Court legalized same-sex marriage nationwide, it did so with three of the people on this list: Ginsburg, Breyer, and Kennedy. That means three of the five justices who backed marriage equality could be replaced by Trump and a Republican-held Senate. So if the issue somehow rises to the Supreme Court again, the new conservative justices could overturn marriage equality.
To be clear, this is extremely unlikely. Precedent is a very, very powerful force in the Supreme Court — especially when, as the polls overwhelmingly show, the majority of Americans support same-sex marriage rights. Justices are unlikely to just overturn this previous ruling on a whim.
It’s also unclear how, exactly, this issue would end back up on the Supreme Court. It previously rose to the Supreme Court because civil rights advocates sued states over their same-sex marriage bans. But there are no longer any same-sex marriage bans in effect to sue over and appeal all the way to the Supreme Court. And if a state tried to pass such a law again, lower courts would, touting the previous Supreme Court ruling, almost certainly strike the law down — leaving little need for the Court to interfere.
Still, it’s a possibility — a nightmarish one for LGBTQ people — of a Trump-appointed Supreme Court.