Law & the Courts

The Corner

Trump’s ‘but the Court!’ Cry Can Be Used Against Him, Too

Earlier in the week, Ian Tuttle wrote trenchantly — and comprehensively — on the matter of Trump and the Supreme Court. Regardless of where you come down on the question, I’d recommend that you read his piece.

Evidently, Trump believes that the Supreme Court is his . . . well, trump card. Indeed, he has taken to saying as much at his rallies. As Ramesh notes over at Bloomberg, Trump’s pitch to the disaffected is extremely blunt:

If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway,” the candidate said at a recent rally in Cedar Rapids, Iowa. “You know why? Supreme Court judges, Supreme Court judges

So far as it goes, this is all fine. And yet there is a whopping flaw in this mode of persuasion: Namely, that the “but the Court” argument could be applied in any direction, not just in Trump’s.

“But the Court!” is a cry that is designed explicitly to appeal to Republicans rather than to Independents or Democrats, its root presumption being that, whatever problems a normal GOP voter might have with Trump, to have Hillary in the White House would be worse. More specifically, it is a pitch that is intended to tamp down dissent and to override conscience — to bring into line the 20+ percent of Republicans who are presently withholding their support. When Trump says “you have to vote for me,” he is not making a pitch for himself on the merits; he is elevating the future of the Court above all other considerations. “Voting for me might be messy,” he is suggesting, “and you might even think I’m unfit for office. But nothing is worse than the damage that Hillary Clinton will do to American jurisprudence.”

Again, so far as it goes this is all fine. But couldn’t this case be made in favor of a host of other propositions, too? For example: Couldn’t it be made in favor of replacing Trump? Certainly, such a late maneuver would invite a cacophony of opprobrium. Were the RNC to try in earnest to kick Trump off the ballot, we would hear about the “will of the people” and about the “sanctity of democracy” and about “abuse of the rules.” But couldn’t the RNC simply respond by saying, “Trump is losing badly, and with a loss goes the Court. Sorry, but we have to do this”? And couldn’t they add, “You know why? Supreme Court judges, Supreme Court judges”?

Likewise, couldn’t such a case be made in favor of, say, Mitt Romney’s jumping into the fray? Suppose that opinion polling indicated that a Clinton-Romney-Trump-Johnson-Stein race would yield no clear winner in the electoral college, and that Romney’s arrive would thus throw the election to the Republican House. By Trump’s logic, wouldn’t it be imperative that Romney got in? Sure, a portion of the GOP’s base would be upset. But why would that matter? At present, a good portion of the GOP’s voters are refusing to back Trump, and Trump’s response is “suck it up, this is about the Court.” Why couldn’t the anti-Trump-but-pro-Romney contingent merely advance the same case: “It’s about the Court, stupid?”

By retreating into brusque power plays, Trump has demonstrated the fundamental problem with this election, which is that the widespread hatred of both candidates has permitted both parties to get away with murder. In George Orwell’s 1984, the public’s loathing of Emmanuel Goldstein serves as a cover for IngSoc to do pretty much whatever it wants. Why? Because at least Big Brother is not that guy. In America’s 2016, both Hillary Clinton and Donald Trump can decline to make a positive case for themselves, and rely instead upon the distaste their would-be voters have for the alternative. The notion that Donald Trump is going to drop out if things get bad has always struck me as fanciful. But he still ought to be careful when playing this game, for if things were to deteriorate to the point at which the GOP came to believe that it was headed for a wipeout, the “have to” in Trump’s formulation could quite easily be turned against him.

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