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What say you, Trump fans?
The Supreme Court Is Not a Sufficient Reason to Vote for Trump
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.
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.
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.
The Supreme Court Is Not a Sufficient Reason to Vote for Trump