Politics & Policy

What a Trumpian Supreme Court Might Look Like

Would justices appointed by Trump be able to restrain him?

In 1952, the National Archives in Washington arranged to put an original parchment text of the Constitution — along with an original parchment text of the Declaration of Independence — on public display. Because of the Cold War concerns about nuclear attacks, the Archives designed the display cases to slide down into a bomb-proof vault below the building. Even if the Soviets launched nuclear devastation on our nation’s capital, the Constitution would still be safe for future generations.

Perhaps we should admire that level of devotion to the Constitution. But we have a stronger preference for avoiding nuclear war. We also want to avoid trade wars and the end of American alliances that are decades old. In short, we are unwilling to entrust our nation’s foreign and security policy to a Trump administration.

But many conservatives still cling to the spirit of the 1950s — at least in their apocalyptic level of constitutional devotion. They say we must accept all other risks so that a President Trump might defend the Constitution, or at least the Supreme Court.

We have already gone on record in opposition to this position, in our op-ed for the Los Angeles Times titled “Filling Supreme Court Vacancies Isn’t a Good Reason to Vote for Trump.” Among other things, people who think this way imagine that because Trump said he would appoint justices recommended by the Federalist Society, he will actually follow through. He may flip-flop and walk back and reposition himself on everything else, but not on his pledge to support conservative judges because . . . there does not seem to be any “because” to support this faith in Trump’s integrity, except the forlorn hope that he respects constitutional conservatives too much to throw them overboard.

Trump supporters also assume that because Trump intends to appoint good people to the courts, the Senate will acquiesce. They believe that Trump will be more successful in his appointments than Presidents Reagan, G. H. W. Bush and G. W. Bush. It’s hard to imagine why Trump, with no experience at all bargaining with legislators, would be more successful (or no less successful) than his far more experienced predecessors.

We would like to add several other considerations that weigh against the notion of Trump as a constitutional bulwark. The first is that the Constitution is not just the case law of the Supreme Court. Some of the most important issues — regarding separation of powers or federalism — do not get before courts, or they don’t generate clear rulings even when they do. Much of the Constitution depends on shared understandings, patterns of practice, and informal precedents.

President Obama has extended executive authority beyond any of his predecessors, as with his penchant for rewriting laws or refusing to enforce them. A successor might try to repudiate or at least isolate the worst of these practices. How likely is a President Trump to let legal arguments stand in the way of anything he might take it into his head to do? How likely is he to appoint legal advisers with the clarity and resolution to tell him when he is overstepping?

Trump has proved unwilling (or unable) to find senior campaign advisers who can tell him when he’s going wrong. Suppose he nonetheless wins the election. How likely is he to follow the advice of more experienced hands? Or heed advice on anything on which he takes so little interest as the Constitution?

But suppose some important issue does get to the courts. One of the few pledges Trump has continually reaffirmed is that he’ll build a wall on our southern border and make Mexico pay for it. He never mentions Congress, so he seems to think he can levy construction charges against Mexico on his own. How? One version he has floated is to stop money orders from Mexican (or Mexican-American) workers back to relatives in Mexico. 

Now think about the resulting lawsuits. Trump feels a compulsion to prove he’s a “winner” and to trash his opponents, and then to protest if he doesn’t win, “the system is rigged.” Will the Supreme Court restrain him? Will it feel confident enough to do so again and again, as Trump’s conduct may require? Does anyone think a Court with several Trump appointees will prove a reliable barrier to Trumpian excesses?

Does anyone think a Court with several Trump appointees will prove a reliable barrier to Trumpian excesses?

But what if Hillary’s appointees overturn the handful of conservative victories of the past decade? That will be sad. We think the Court would err, for example, if it were to reverse its recent cases holding that the Second Amendment protects the right of individuals to own firearms. But it may not be better, in the long term, to “save” such rulings under a Court identified with Trump. 

One of the most discouraging trends on the Court in recent decades has been the disciplined bloc voting by Democratic appointees on major issues. They persist in treating decisions that they dislike — on the Second Amendment, campaign contributions, religious freedom — as open questions, subject to reconsideration. Many academic commentators approve and encourage that level of partisanship. 

But so far, this has all been a matter of what is said in dissents. It might well be that even some of the Court’s liberals would, in practice, be reluctant to overturn a whole series of conservative precedents. That might undermine the authority of their own rulings. But that assumes a Court that still retains some general aura of public acceptance.

Think, then, about a court with two or more Trump appointees. How much long-term authority will its controversial rulings attain? To imagine that they shape constitutional understandings over the long term, one must believe that judges are not affected by tides in public opinion — or, in this case, that judges remain indifferent to a constant, fierce barrage of attacks, associating every controversial ruling with the scowling or pouting face of Donald J. Trump. If the Court did what Trump demanded, it would be branded “the Trump Court.” Future Court majorities may well take pride in rescuing the country from “the shameful legacy of the Trump era.”

Perhaps Trump appointees and others will stand firm. But then what? To believe that someone like Trump can reshape constitutional law, one has to believe not only that Trump will appoint highly capable, resolute, and principled judges to the Supreme Court. It also requires us to believe that Trump will be reelected and then pass on his prestige to a follower — such as Chris Christie — in order to keep restocking the Court with resolute Trumpists who can withstand the drumbeat of protest and opposition. Since previous Republican presidents failed to maintain such momentum in their Court appointments, Trump has better prospects only if he has the unique attributes he sometimes claims. (“I alone can fix it!”)

What we’ve actually seen in this campaign is that Trump is a highly polarizing figure. That won’t change should he manage to get himself elected. If he does win despite the campaign he has run, his advisers will conclude that they must “let Trump be Trump.” His instinct will be to rule as he has won, by exacerbating the divisions in our society and disdaining to expand his governing coalition. To say we need him for the Supreme Court is to say we can accept a Supreme Court operating on the precise fault lines of almost all our domestic political disputes. And that will help to build a solid constitutional structure?

If you can believe that, you can believe Trump has all the magical powers he claims to have in dealing with foreigners — making them pay up, stand down, respect us, and doing so “very fast,” just by acting “smart” and “tough.” If you find this plausible, we admit that you are beyond the reach of argument and have passed into the realm of fantasy. Pleasant dreams!

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