The Supreme Court has become Donald Trump’s trump card.
In a recent Washington Examiner column entitled “It’s the Supreme Court, Stupid,” Hugh Hewitt declared:
If Hillary Clinton wins, the Left gavels in a solid, lasting, almost certainly permanent majority on the Supreme Court. Every political issue has a theoretical path to SCOTUS, and only self-imposed judicial restraint has checked the Court’s appetite and reach for two centuries. That restraint will be gone when HRC’s first appointee is sworn in. Finished.
Phoenix Seminary professor Wayne Grudem argued similarly in a widely publicized column at Townhall: “The nation would no longer be ruled by the people and their elected representatives, but by unelected, unaccountable, activist judges who would dictate from the bench about whatever they were pleased to decree. And there would be nothing in our system of government that anyone could do to stop them.” And Trump himself has taken up the warning: “Even if people don’t like me, they have to vote for me,” he said on Tuesday. “They have no choice. . . . You know why? Justices of the Supreme Court.”
The prospect of a Supreme Court defined by Hillary Clinton is grim, and conservatives are right to be concerned. But while the Supreme Court may be the last compelling reason to vote for Donald Trump, it’s hardly a sufficient reason to vote for him.
And Trump might, indeed, appoint someone better. Might. His list of potential Supreme Court nominees, released under duress in May, is promising, if hardly foolproof. But it is also provisional. There simply is no reason to believe that the same Trump who has contradicted himself on amnesty for illegal immigrants, abortion, NATO, and much else, will stick to his assurances on this. Recall that this is the same man who — in February — suggested nominating his sister, who once wrote a decision defending partial-birth abortion. (Trump added at the time that he did not like people criticizing her “for signing a certain bill,” suggesting that a septuagenarian presidential candidate was very recently under the impression that judges sign bills.)
But let’s say Trump abides by his word: In the short-term, then, the best-case scenario is that a President Trump picks a reliable conservative to replace Justice Scalia. Yet even this only maintains the status quo: four liberal justices, four conservative justices, and Anthony Kennedy, swinging in the middle. And this relies on the makeup of the Senate. If Republicans win the White House in November but lose the Senate, Democrats could force Trump to replace Scalia with a Kennedy-esque “moderate.” The possibility that Trump would get to appoint conservative justices to replace any of the oldest, left-leaning justices — Ginsburg (83), Kennedy (80), or Breyer (77) — is no more likely than that they would stick around until 2020.
In the event that it’s Hillary who gets to fill Scalia’s seat, Trump supporters have a host of doomsday predictions at the ready. Grudem says a five-justice liberal majority would give the Left “permanent control of the nation.” Hewitt says that a “very liberal majority” (Would a 5-4 Court qualify?) would mean that “conservatism is done.” They cite several recent 5-4 decisions that went conservatives’ way — Hobby Lobby, Gonzales v. Carhart (which upheld the ban on partial-birth abortion), &c. — and suggest that these and many others will be overturned in short order.
These concerns are not misplaced, but the apocalyptic tone misrepresents the Court’s actual, year-by-year activity. Consider: Between January 2012 and June 2014, the Supreme Court ruled against the Obama administration unanimously 13 times — on everything from recess appointments to abortion-clinic “buffer zones.” This was not an anomaly. Since 1995, almost every year has seen more than 40 percent of cases — that is, a plurality — decided unanimously; in 2013, it was two-thirds. (To be fair, there are different degrees of unanimity.) Meanwhile, only twice since 1995 have more than 30 percent of cases split 5-4.
This suggests that the Court’s justices are more likeminded legally than political pundits often recognize. There are important swaths of agreement. This was demonstrated decisively in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, in which the Court unanimously ruled that federal discrimination laws do not apply to religious organizations’ ministerial-hiring decisions. Even the liberal wing of the Court has shown contempt for certain obvious acts of overreach.
This is not to say that a liberal Supreme Court could not, and would not, do serious damage to our constitutional order.
Clearly, this is not to say that a liberal Supreme Court could not, and would not, do serious damage to our constitutional order. Hillary Clinton has made clear that she wants to overturn Citizens United, which would roll back First Amendment protections on political speech, and she has waffled on the Court’s Heller decision, which formalized the traditional interpretation of the Second Amendment. Furthermore, the Court’s liberal wing, usually with the aid of Anthony Kennedy, has shown that it is willing to betray earlier precedent, or concoct new legal justifications whole-cloth, to forward political goals.
But this damage accumulates slowly, and it can be mitigated. Conservatives often forget that the Supreme Court can only render decisions on cases presented before it. Disciplined conservative legal circles can curtail the Court’s power to establish national precedents by refusing to appeal to it. In the event of an irresponsible Supreme Court, invoking higher judgment on, say, a foolish Ninth Circuit ruling should be left for another, more hopeful day. This is not a panacea, but minimizing the Court’s opportunities to rule on key issues can minimize its damage. And it’s worth remembering that there is no such thing — contra Hewitt and Grudem — as a “permanent” liberal majority. The Burger Court turned into the Rehnquist Court.
Considering the question judiciously, this — not the apocalyptic scenario painted by Trump supporters — seems the more likely outcome of a liberal Supreme Court. It would be a lousy period for constitutional governance, but not the end of it.
What Trump supporters refuse to do is weigh it against another clear and present danger to our constitutional order: a President Donald J. Trump.
Trump’s potential abuses are numerous — and, unlike most presidential hopefuls, widely advertised. He has suggested that he will prosecute journalists who write unfavorable stories about his administration. He is open to “shutting down” parts of the Internet. (Might this be a free-speech violation? Only “foolish people” would suggest that.) The prospective commander-in-chief has declared that he would force American troops to commit war crimes. And he has said that he has no qualms about using executive orders much like President Obama has done (only Trump’s will be “better”). Trump’s dismissiveness toward the Constitution is in excess of anything Barack Obama displayed in 2008 or 2012.
Trump’s dismissiveness toward the Constitution is in excess of anything Barack Obama displayed in 2008 or 2012.
Moreover, the only real insight we have into Donald Trump’s judicial philosophy (such as it is) is from the week he spent savaging Gonzalo Curiel, the federal judge who is presiding over two lawsuits against Trump University. The takeaway from that deplorable episode was that, as with everything else, Donald Trump likes judges who like Donald Trump; he wanted a judge who would put his interests above the law. What reason is there to believe that he would behave differently as president?
Nonetheless, those who cite the Supreme Court as a compelling reason to vote for Trump are of the befuddling opinion that the same man who has demonstrated willful ignorance of the Constitution, who has promised to subvert the Constitution, and whose dealings with the judiciary demonstrate contempt for the Constitution, is the man who will save it.
And if this were not enough, one must add to it all of Trump’s other excesses: his self-contradiction (and outright lies), his inability to refrain from attacking critics (from Jonah Goldberg to Khizr Khan), his array of questionable associates (Corey Lewandowski, Paul Manafort, Roger Stone) and questionable associations (the Kremlin), his borderline bigotry, and much else. These personal qualities will not lead to calm or stability.
Finally, all of this will combine to damage, perhaps beyond repair, the only major party that continues to care about constitutional limits on government power. Although Trump supporters are loath to admit it, as of now there still remains one party in the United States that wants the Constitution to be the ultimate framework for, and the animating spirit of, the country’s public life. But the last year has seen many of the defenders of that aim sideline their principles to back Donald Trump. And what has become undeniably clear is that anyone who gets into the business of defending Donald Trump ends up parroting him. This has been the story of Chris Christie and Rudy Giuliani and Mike Pence and dozens of other elected officials and television personalities and talk-radio hosts who had for so long waxed eloquent about limited government and the importance of the Constitution.
Trump’s warped and deeply un-conservative view of government is contagious. After four years, it is almost a guarantee that the Republican party will have been warped beyond recognition. Too many Republican congressmen, too many Republican senators, too many Republican governors, will have spent four years defending, excusing, and becoming anesthetized to Trump’s abuses to be the Constitution’s champions when he is gone. It is not at all implausible that he will excise the heart of the party — he’s already doing so — and it is not at all difficult to imagine that after four years, we will have two parties that view the Constitution as dispensable.
No Supreme Court could save us then.
— Ian Tuttle is the Thomas L. Rhodes Fellow at the National Review Institute.