In response to Who Are They Kidding?
The question Ramesh and John Yoo raise, namely “Can Trump be trusted on the courts?” should be tempered by a look back at the track record of Republican judicial appointments since Richard Nixon. Many of them have been stellar, including of course the late Justice Antonin Scalia, whose passing was a national tragedy. But let’s recall that the Supreme Court was dominated by an overwhelming majority of Republican appointments for three straight decades until this year, and those decades of supposedly “conservative” dominance proved bitterly disappointing in the end.
Some of those GOP appointees turned out to be pure progressives, like John Paul Stevens and David Souter. Others turned out to be highly unreliable (not to say wishy-washy) conservatives with a unfortunate penchant for “feels-like” legal reasoning, such as Anthony Kennedy and (far worse) Sandra Day O’Connor. But even our own conservative heroes, such as William Rehnquist (and, yes, even Antonin Scalia) had a far too minimalist vision of the role of judges. That went a long ways toward neutralizing the impact of having a conservative majority on the court.
Stare decisis is a bedrock principle of the Anglo-American common-law tradition, which says that once an important legal question has been decided by a court, it should stay decided with respect to future similar cases. But stare decisis is a dangerous principle with which to follow a period of 50 years (in this case, from 1937 until 1986) during which one terrible decision after another has had the aggregate effect of dismantling many of the Constitution’s most crucial restraints on government power. If a period of judicial activism leaves us with a series of major errors in constitutional jurisprudence, following them with a period of steadfast judicial restraint only compounds the errors.
New Deal decisions such as the 1937 case of Steward Machine Co v. Davis (on the reach of the Spending Clause) and the 1942 case of Wickard v. Filburn (on the reach of the Commerce Clause) were bad enough. But the Rehnquist opinions that essentially restated them, namely South Dakota v. Dole (1987) and United States v. Lopez (1995), settled the enormous controversy over the New Deal decisions in favor of progressive principles that are utterly poisonous to the proper functioning of our Constitution. And notice that Dole came out the way the Reagan administration hoped (giving the federal government the power to set the national drinking age, despite the constitutional amendment that repealed Prohibition), and Lopez was hailed as a great victory by conservatives. (Only the famous concurrence by Justice Clarence Thomas in Lopez reached the correct conclusion, namely that Wickard v. Filburn was wrongly decided and ought to be reversed; the consequence of that of course would be to repeal virtually the entire federal behemoth as it exists today).
In this sense, Chief Justice John Roberts is perhaps not given as much credit as he deserves. The Medicaid portion of his opinion in the Obamacare case was a clever misstatement of the rule of Dole. By pretending that Dole said something slightly different from what it actually said, Roberts opened the door just a crack for future decisions to dismantle bit by bit the terrible principle enshrined by Rehnquist in the Dole case, namely that the federal government can control state policy by the coercive manipulation of federal grants to the states. You can thank Rehnquist for the fact that President Obama can now impose transgender proclamations on the nation’s schools by threatening to withdraw federal funding, despite the fact that none of those schools are subject to federal regulatory authority.
There’s not much that even the most constitutional-conservative president can do if even the most conservative judges are not willing to overturn old cases that were terribly wrongly decided. And it’s not just a matter of finding potential appointees who (a) understand the serious problems in the commerce, spending, federalism and separation-of-powers cases going back 80 years and (b) are ready with new doctrines to replace the old ones — and those are frightfully few and far between. Worse, we have a population that believes in a federal minimum wage and the federal Medicaid program, the federal highway program, and federal education assistance to poor local-area school districts, and on and on. In other words, we have a population (and even a Republican party!) that has mostly bought into the progressive scheme of government, rather than the Constitution we actually have. And no judicial appointee is going to solve that problem.