During the campaign, Donald Trump vowed to “drain the swamp” in Washington, D.C. He was referring primarily to halting the “revolving door” now used by high-level federal apparatchiks to secure lucrative lobbying positions on K Street after leaving government service. This is a laudable and overdue reform. But draining the swamp in Washington will take more than that. Even the president-elect’s support of congressional term limits (which would require an improbable amendment to the Constitution) falls short of promising meaningful curtailment of the federal Leviathan.
To tame the modern administrative state—the metastasized product of too many unaccountable administrative agencies exercising powers far exceeding those granted to the federal government by the Founders—will require a radical transformation of constitutional law as we currently understand it. President Trump can achieve this only by appointing the right justices to the U.S. Supreme Court.
Trump’s electoral success lies in his role as disrupter. The greatest—and most-needed—disruption he could introduce would be to resurrect the long-neglected limits on federal government power that the United States Supreme Court abandoned during the 1930s, to enable the alphabet soup of New Deal agencies and legislation. Accordingly, Trump’s most important appointments will not be his cabinet and White House staff, but his Supreme Court nominees—beginning with the imminent choice of the late Antonin Scalia’s successor.
Trump has compiled what appears to be an excellent list of 21 potential candidates, drawn from sources I have long admired: the Federalist Society and the Heritage Foundation. But Trump’s most trusted advisers must look at the candidates very closely, carefully review their paper trails, and ask them some probing questions—“extreme vetting,” if you will—to make sure whoever he nominates will have the moxie and courage to chart a different course.
Many Republican presidents have been disappointed by their SCOTUS appointments (or at least they should have been). Yet all candidates on a president’s short list “looked good on paper” before ascending to the High Court. Richard Nixon batted .250, scoring only with William Rehnquist (and, embarrassingly, appointing the author of Roe v. Wade, Harry Blackmun); Gerald Ford went 0-1 with John Paul Stevens; Ronald Reagan hit a home run with Scalia, but struck out with Sandra Day O’Connor and Anthony Kennedy (in Reagan’s defense, he’d unsuccessfully nominated Robert Bork); George H.W. Bush made history with Clarence Thomas, but whiffed with David Souter; George W. Bush’s pick of Samuel Alito was a high point of his presidency, while John Roberts inexplicably voted twice to uphold Obamacare and even wrote the widely-panned opinions in NFIB v. Sebelius (2012) and King v. Burwell (2015). (Bush 43 was spared history’s harsher judgment for the ill-considered nomination of Harriet Miers, which he subsequently withdrew in favor of Alito.)
For Trump to succeed in his mission to “drain the swamp,” he has to bat 1.000 with his SCOTUS appointments—the equivalent of picking Scalia, Thomas, and Alito seriatim. All of the candidates on the shortlist (and many excellent prospects who did not make the initial cut) seem to meet the basic requirements of being smart, well-educated, and “conservative” (an imprecise label, as we shall see). Some candidates are “better” than others. What are the specific things Trump should look for in a High Court pick? (Besides appointing Scalia’s successor, over the next four—or eight—years, Trump will likely be able to fill a few more vacancies given the age of the current justices, possibly reorienting the court for decades to come.)
A Word About Terminology
Before addressing that, I want to clear up some common confusion about terminology, so a brief detour: In discussions about constitutional law, the key concepts are “originalism” (interpreting the Constitution according to its meaning when written and ratified) versus “non-originalism” (sometimes referred to as “the living Constitution” theory, which posits that judges should interpret the Constitution according to “the evolving needs of society,” or some similar folderol). In the third presidential debate, Hillary Clinton clearly embraced the latter school, which understandably has widespread support among liberal scholars wishing to impose their personal policy preferences on the rest of the country. In conservative legal circles, and due in no small part to the intellectual force of Justice Scalia, originalism has become the overwhelmingly dominant school of thought. Trump should only consider originalists, but that is just the beginning of the inquiry. Originalism is only a technique for constitutional interpretation; it does not dictate specific results. In navigational terms, originalism provides a general orientation, not exact GPS waypoints. Indeed, originalists can (and do) reach widely differing conclusions about the meaning of particular clauses of the Constitution.
The more salient division among right-of-center jurists and scholars is “judicial restraint” versus “judicial activism,” an important dichotomy that is sometimes confused because different people apply the labels differently. I explored the dichotomy in a 2015 article, “The Quandary of Judicial Review,” and will briefly summarize it here. In exercising judicial review consistent with Federalist 78, a judge should not hesitate to strike down a law that violates a specific provision of the Constitution, but is otherwise bound to enforce the law, despite subjective concerns about the law’s wisdom or necessity. This sounds simple but confounds many scholars on the Right, some of whom oppose any meaningful judicial review, and some of whom abhor “majoritarianism” (i.e., popular self-government).
In discussions regarding constitutional decision-making, the concept of “judicial restraint” (which is consistent with constitutionalism) is often contrasted with its opposite, “judicial activism” (which is not). The terms sometimes lead to confusion when “restraint” is used—incorrectly—to encourage judges to defer to the other branches whether or not a challenged law violates the Constitution. Likewise, the term “activist” is sometimes used—again, incorrectly—as a pejorative whenever a judge overturns a law, even if the law plainly violated the Constitution. As I wrote in National Review:
The Constitution embodies legitimate rights, which the courts are not just permitted, but obligated, to enforce. At the same time, the Supreme Court has invented many “rights” that appear nowhere in the Constitution and are, in fact, entirely the product of the justices’ own personal predilections…. Such predilections have no juridical weight and are entitled to no moral respect. Therefore, if a legitimate constitutional right is implicated, a court does not engage in “activism” by striking down a law that violates it. That is the court’s duty. Indeed, the court would be guilty of passivity (or outright abdication) if it upheld the law. Courts are supposed to uphold laws that do not violate a legitimate constitutional right, no matter how foolish the judges may think they are. That is exercising “judicial restraint” (a good thing). Conversely, if a court fails to strike down a law that does violate the Constitution (as the Supreme Court arguably did with Obamacare in NFIB v. Sebelius ), it is not engaged in “judicial restraint,” but is guilty of passivity/abdication (a bad thing). However, giving the Court carte blanche to overturn laws for reasons not grounded in the Constitution invites judicial usurpation, which is both unprincipled and undemocratic. (Emphasis in original.)
This is not a trifling semantic distinction; it goes to the heart of sound constitutional decision-making. Some “conservative” legal scholars, such as Judge J. Harvie Wilkinson III, embrace an overly deferential role for judges. For example, Wilkinson has defended the execrable decision in NFIB v. Sebelius as an exemplar of “restraint” and has criticized Scalia’s landmark decision upholding the Second Amendment in District of Columbia v. Heller (2008) as manifesting “activism.” Wilkinson’s perspective, shared by some “old school” conservatives, promotes the jurisprudential status quo, and resembles the mentality of Establishment Republicans in Washington: don’t rock the boat.
On the other side of the ideological aisle, libertarian legal scholars who advocate a more aggressive role for judges in all cases deny the existence of judicial activism and regard any form of judicial restraint as “abdication.” Many libertarians view Roe v. Wade and similar decisions as a vindication of “unenumerated” individual rights.
Both camps are wrong. A principled constitutionalist enforces the Constitution (but only the Constitution).
Trump should—through extensive due diligence—make sure that any candidate he appoints to the Supreme Court does not share Wilkinson’s crabbed notion of the proper judicial role (which can be traced back to Progressive Harvard law professor James Bradley Thayer in the 19th century), or some libertarians’ equally mistaken conception of judges as Platonic Guardians (most notably advanced by Georgetown law professor Randy Barnett). Fittingly, misguided scholars from both camps joined the anti-Trump manifesto styled as “Originalists Against Trump.” Trump’s presidential campaign presented him as a “third way”—an agent of change that transcended traditional partisan differences. Trump could extend that vision to a judicial philosophy that is not mired in orthodoxy. Justice Clarence Thomas is the archetype of an originalist jurist who is devoted to the Constitution but does not feel constrained by erroneous precedents of the Court through the doctrine of stare decisis.
Who Then Should Judge?
Now let’s return to Trump’s SCOTUS picks. The greatest impediments to restoring constitutional government in the United States are the Supreme Court’s extravagant interpretation of Congress’s commerce clause power in Wickard v. Filburn (extending federal regulation to wholly intrastate activity) and the astonishing proliferation of federal administrative agencies, which despite being situated in the executive branch exercise both rulemaking (i.e., legislative) and adjudicatory (i.e., judicial) power. In performing these functions, administrative agencies not only lack constitutional authority, they operate in defiance of the separation of powers set forth in the Constitution. Even worse, the Supreme Court has issued precedents (including the Chevron decision) that often require courts to defer to administrative agencies due to the agencies’ presumed “expertise”!
As the volume, scope, and burden of federal regulations—laws enacted by unelected and unaccountable bureaucrats—continue to grow, critics have begun to question the constitutional foundation of the administrative state. Noted constitutional litigator Chuck Cooper and Columbia law professor Philip Hamburger (who wrote a 2014 book called Is Administrative Law Unlawful?) have made a powerful case that administrative agencies, as currently constituted, violate the constitutional separation of powers, echoing arguments that Justice Clarence Thomas has made in recent opinions. Trump should appoint justices in the mold of Thomas, who are willing boldly to reconsider prior SCOTUS decisions that have mistakenly granted the federal government powers in excess of its constitutional limits.
Not all of the candidates on Trump’s short list fit the bill. Some lean toward the Wilkinson model of excessive deference, and others lean toward the libertarian model of insufficient deference. For example, 11th Circuit judge William Pryor, widely regarded as a front-runner, is on record as describing New Deal commerce clause precedents as “defensible.” Granted, federal court of appeal judges are not expected to critique Supreme Court precedents, so the significance of this comment is limited. More troubling is Pryor’s concurrence in a decision that upheld the exercise of federal jurisdiction over an assortment of stray cats belonging to the Hemingway Home and Museum in Key West, Florida, on the ground that the cats “substantially affect interstate commerce.”
In contrast, 10th Circuit judge Neil Gorsuch has thoughtfully questioned Chevron deference and even suggested that Chevron is “no less than a judge-made doctrine for the abdication of the judicial duty.” I haven’t done enough analysis to endorse (or oppose) any particular candidates, although in my opinion the list could profitably be expanded to include some additional prospects, such as D.C. Circuit judge Brett Kavanaugh and Senator Ted Cruz. Bottom line: President Trump faces a momentous decision. Let’s hope he chooses wisely.