2016 Election

Make the Supreme Court Great Again


- November 12th, 2016
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It’s called “Make the Supreme Court Great Again.” Or at least that’s how President-elect Donald Trump would likely describe the task at hand.

Let’s start with what we know about this task.

We know that the court’s future is something that resonated particularly strongly with Trump voters. According to national exit polls, 21 percent of voters thought the Supreme Court was the most important factor in making their decision, and 57 percent of that 21 percent voted for Trump.  

We also know something about Trump’s potential nominees. Based on expert advice from the Federalist Society and Heritage Foundation, Trump in May released a list of 11 highly qualified conservative judges as an example of the kinds of judges he would consider nominating. And after that list was criticized for being too white, he added a more ethnically diverse list of 10 more lawyers and judges. So we know that Trump’s picks will most likely come from that group of 21.

But here are several things we do not know about Trump’s judicial appointments.

How Many?

Trump often talked of the next president getting three, four, or possibly even five Supreme Court appointments. Each time I heard him say that, I would turn to my wife and ask: “Is he planning to off someone?” Because, you know, after that Fifth Avenue comment, and given that I take everything Trump says literally, I was genuinely frightened.

The truth is that in his first term he will likely have only one appointment (filling the vacancy left by Justice Scalia’s death in February), because the three oldest justices are Ginsburg (83), Kennedy (80), and Breyer (78)a group not likely to retire under a Trump Administration.  

Indeed, given that Ginsburg wore her dissent collar (which every good jurist should have in her wardrobe) the day after the election, that she “can’t imagine what the country would be with Donald Trump as our president” (she should probably start imagining it), and that she does not “even want to contemplate” what a Trump presidency would mean for the court (she should probably start contemplating that, too), I would say the odds of the Notorious One leaving her position voluntarily under Trump are about as low as her namesake resolving that East Coast-West Coast rivalry.

The same is likely the case for Breyer, who, like Ginsburg, is a liberal President Clinton appointee, and to add to that, the world’s biggest Francophile who believes global law is American lawno, not a Trumpkin. The same can be said for Kennedy, who, despite being appointed by President Reagan, has moved substantially to the Left and now positions more as a center-Left libertarian.

So while Hillary Clinton likely would have had the four picks that Trump declared to be at stake in this election (and in that sense these spots truly were at stake), it is doubtful that President-elect Trump will have more than one pick in his first term. There has been speculation of Thomas’s retirement, which does seem more likely after the Trump election, even at Thomas’s relatively young age of 68.

But even with a Thomas retirement, Trump would not be able to budge the ideological tilt of the high court, given that Thomas and Scalia have been the most conservative voices on the court for the past 25 years.  

That chance, however, would become much more likely were Trump to have a second term, by the end of which Ginsburg would be 91, one year older than the oldest justice ever to sit on the court, and Kennedy and Breyer would both be in their late 80s.

An oft-overlooked part of this story are the lower federal courts, which became nearly three-quarters liberal under Obama. Trump will likely be able to move the overall ideological makeup of the lower courts back toward the center.

What Kind of Judges Will Trump Pick?

It’s called “Make the Supreme Court Great Again,” and that requires making the Supreme Court justices great again. But what makes for a great justice? Given that the Left has controlled the entire university system for the past 50 years, the greatest judges, and the greatest judicial decisions, are those that best represent Left-wing causes.

And guess which judges and judicial decisions are the worst? You got itthese are all conservative. Isn’t ideological control an amazing thing? What they say is the truth turns out to be the truth.

As a result, anyone educated within the American system can succeed only by extolling progressive judges and decisions as the best, while condemning conservative ones as the worst. By the time most of us have graduated from college and law school (some of us have a Ph.D too—that is the sound of me brushing the dirt off my shoulder), we have, consciously and unconsciously, accepted this paradigm.

The only way for Trump to make the Supreme Court justices great again, under the Right’s criteria for greatness at least, is to reject the Left’s criteria.

After Justice Scalia died, for example, a Georgetown Law Professor wrote that the university should not mourn Scalia’s death because he defended “privilege, oppression and bigotry.” The Right’s response to such shaming cannot continue to be what it so often isand that is to cower in the fetal position, begging for forgiveness, willing to disown anyone in return for the Left’s absolution.  

Trump is just the person to reverse this trend. Indeed, Trump has consistently said that Justice Scalia is his favorite justiceunfounded charges of “privilege, oppression and bigotry” notwithstandingand that he intends to nominate judges of Scalia’s ilk.

But what does Trump mean by this? My sense is that Trump is not referring to the doctrinal niceties of Scalia’s views on administrative law, but rather his jurisprudential attitudenamely, his famously confrontational and politically incorrect approach in sparring with lawyers as well as his colleagues. Trump and Scalia, both Queens natives, and separated only by a decade, share an old-fashioned, no-holds barred, commitment to winning; mediated by an unusually charismatic and acerbic wit; rounded out by an allergy to the hyper-sensitivities that pervade 21st century American discourse. The New York that looked like this, and not this.

What this means is that we won’t get “country club” conservative judgesthe type that ends his Obergefell v. Hodges (2015) dissent by extolling same-sex marriage but then sternly warning gays and lesbians not to think of the Constitution while celebrating their newly created rights. The “country club” conservative is the father of 2016 America: “You can stay out past your curfew, use any drugs you want, and sleep with whomever you want, but please, darling, don’t think that I approve while you do these things.” Ok, thanks dad!

This is the conservative Democrats love, just as 2016 dads are the fathers prison-bound boyfriends love. Whatever happened to all those “Paul Ryan” types, the good principled conservatives who truly care about conservative values?

As it turns out, to be a principled conservative in 2016 is to care about progressive values, with the only distinction between the Left and Right being that the Right more resolutely, devoutly, and universally espouses the values that the the previous generation of Progressives promulgated. These conservatives are the confused children, regurgitating their parents’ outdated hippy beliefs with an amped-up fervor and ferocity, eager to update their moral calendar to the current year when ordered to do so.  

This ruse, designed, quite effectively, to have Republican functionaries do the bidding of the Left, will not work on Trump. And that will make Trump’s judicial picks quite different from, say, Jeb Bush’s.

Perhaps even with the new electoral map, and the emerging blue-collar contingent of the Republican Party, we can expect Trump to make good on Scalia’s criticism in Obergefell of the court’s unrepresentative demographics. Despite a preoccupation with ethnic diversity, few seem to care that the court lacks any other form of diversity. As Scalia explained, the high court consists of nine elite lawyers who attended either Harvard or Yale Law; eight grew up on the two coasts; and four hail from New York City. Indeed, Scalia wrote, there is not a single Southwesterner, evangelical, or even a Protestant (a group that constitutes more than 50 percent of the nation).

President Obama did not diversify the court, in any of these ways, by appointing Justices Kagan (Jewish, New York City, Harvard Law) and Sotomayor (Catholic, New York City, Yale Law). I wouldn’t be surprised if Trump, the diversity anti-Christ, added more meaningful diversity to the court than Mr. Diversity himself. Perhaps a Nino of the South. Bubba Scalia?

Which Issues Will Be Central to Trump’s Constitutional Vision?

It’s called “Make the Supreme Court Great Again,” and this requires making constitutional law great again, which means making it once again resonate with this nation’s heritagenot abstract principles divorced from our lived experience and accumulated wisdom as a people. To restore constitutionalism in a crumbling culture filled with this, that, and lots more of this, judges and elected politicians alike must fight for the nation’s heritage and people, without adopting half of the Left’s narrative and then apologizing for not adopting the other half.  

Spelling out in detail how this could be done would require an entire essay (or a book, forthcoming) on the subject, but here I will simply alert the reader to the fact that Trump has outlined the general contours of this vision, in which he proclaims that he will nominate judges who interpret the Constitution according to its “original public meaning.”

This is of course par for the course for a Republican candidate, but what may be telling is that for such a short statement it devotes significant attention to federalism and local autonomy. These are issues that Republicans have long endorsed in form, but have recently ignored in effect, often times accepting the Left’s progressive agenda in expanding congressional power, broadening administrative agency discretion, and diminishing local autonomy.

Trump clearly lacks the legal acumen of his scholarly predecessor (who somehow was offered a tenure-track position at University of Chicago Law School without publishing anything, even as a student, more than six pages long).

But if there is one principle underlying Trump’s constitutional thought, or perhaps we should call it something more primordial, like “constitutional attitude,” it is this: The touchstone of law is the sovereign consent of the people.

We see this in Trump’s support of Brexit, his consistent opposition to Common Core in favor of local education, his faith in local communities and law enforcement, and his insistence that he was but a messenger for a larger movement of the people.

This touchstone of law is of course Jefferson’s entire basis for the Declaration of Independence, that no political community has the authority to govern another, as well as Lincoln’s argument against slavery, narrowed from Jefferson’s focus on the community to apply to the individual.

This is not a bad principle for the Party of Lincoln to hail once again in making America, as well as the Supreme Court, great again.  

 

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