Make the Supreme Court Great Again

By | 2017-06-02T18:30:05+00:00 November 12, 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.  

 

About the Author:

Jesse Merriam
Jesse Merriam is an assistant professor at Loyola University. He holds an M.A. and Ph.D. from Johns Hopkins University and a J.D. from The George Washington University Law School.
  • Uncle Max

    I would like to see a jurist not of Yale or Harvard. Jeff Sessions would be excellent as would even Trey Gowdy or someone else under 50 not of Washington DC. I’d be fine with someone that holds the law and constitution as a serious ideal that must be revered and not molly-coddled into what ever the flavor of the month says. We’ll see.

    • jack dobson

      Excellent suggestions/Trumpian thought-processing. Gowdy might get the edge due to age, but Sessions has been on the bench.

      • Michael Scott

        Gowdy should the A.G.

    • rick rick

      In the end here, I’m betting Trump picks William H. Pryor from Alabama, the home state of Jeff Sessions, who helped Trump compile his original list. Trump owes Jeff Sessions a debt of gratitude, because he was the first conservative politician who endorsed him and undercut Ted Cruz’s assertion that Trump didn’t have any conservative votes. Next, Trump’ll want a woman, so he’ll choose Diana Sykes. From there, it’s anyone’s guess.

    • SkiBum

      Napolitano.

  • ricocat1

    God may have other ideas on how many SCOTUS vacancies Donald Trump may fill.

    • JunkMonkey

      Yep, just like the Clinton Crime Fami… I mean, He did with Scalia. 🙂

  • jacknyc

    Ginsburg of course must now recuse herself on EVERY case involve T

    do we think she has ANY self-awareness?

    I don’t, her mental posture is as cramped as her physical

  • Gassius Maximus

    And then there is the dismal disappointment called John Roberts. There needs to be Term Limits for sure. And there should be something, a law of sorts related to “false advertising” related to resume’s and job applications for these kinds of positions. When demonstrated performance deviates from the norm, investigations need to be held. Inquiries as to why to account for such deviations. These people are not above the law and they are accountable to the public as well.

    • Eric377

      Roberts is uniformly detested in liberal judicial circles as about the most dangerous conservative the court has seen and much of that is that he picks his fights well. Obamacare will be extinguished and Trump won in 2016…can you imagine what would have happened had the Supreme Court (as a proxy for the Republican party) been silly enough to destroy the individual insurance markets in many states in the union in 2015 because some wanted to withhold the premium subsidies over subtle drafting inconsistencies? Roberts is much bigger picture guy and that Hillary Clinton isn’t President elect goes in part to Roberts good sense.

      • GaryLeeT

        Spot on. Roberts wanted the people to reject the ACA, not the court. Very smart man.

      • Gassius Maximus

        your rationalizations in defense of Roberts are funny. Hillary did herself in with her “Deplorables” name calling, email scandal, and more and yet she blames the FBI, Obama, anybody and everyone except herself. Typical. And that you think Roberts was playing a strategic long game is, well, just dumb. You fight evil and wrong where it is. Now the job of killing off ObamaCare is that much harder has it has had time, years, to metastasize and dig in its root into so many nooks an crannies of the economy, medical industry and law, that is it is not going to be easy to “repeal.”

  • rick rick

    Jeff Sessions would be a great pick. Think he has his pick of the later, so Sessions may want AG, which explains why Rudy Giuliani says that he doesn’t want it, and wants Secretary of State instead, which pushes Newt Gingrich down one notch. Still, I think that Trump likes Sessions by his side (along with Mike Pence) to help run the country in a conservative manner.

  • The Deplorable Russ in OR

    Ruth Bader-Ginsburg may not walk out voluntarily, but according to actuary tables, Trump still has a great shot at filling her seat.

    • SkiBum

      Breyer’s as well. He could fill 3 seats. I expect him to be re-elected in 2020 as well.

      • JunkMonkey

        Maybe. Let’s see how he governs, first, though. I’m hoping for the best!

    • KeynesWasWrong

      There are actually rumours that Kennedy is thinking of retiring. He has skipped a couple court clerking trips.

      Or he might not. But I wouldn’t be suprised if he does, and then we can say good riddance to Obergefell vs Hobbes (I mean, it’s even annoying to write) and Roe v. Wade. The Supreme Court does not rule this country.

  • Corey Battey

    This author fails to mention that the average age of death in the Supreme Court is 65. I know everyone is saying that calculates people when they had a short life span. Some of that is BS because Oliver Wendell Holmes died in 1930 at 91 years of age and he is the benchmark for the oldest. Note that Scalia was 79 when he died. So Ginsburg, Byer, and Kennedy can easily kick it before then. If Trump gets a second term then the court will more than likely go extreme conservative.

  • David

    I hope Trump’s first executive order is creating a law that you must kill at least one liberal each day. The country’s problems will be solved in no time!!!

  • SkiBum

    I would like to see the jurists who place global law above US law impeached for violating their oaths they took when sworn in.

  • theduke89

    If Ginsburg has a stroke and begins to assume room temperature, look for Democrats to put her on life support and make her the Terry Schiavo of the Supreme Court.

    • JunkMonkey

      If you allow her to die, you’re playing God!!!

  • AriTai

    We’re long overdue for a non-jurist, maybe two. Who should they be? To return justice to judgement by our peers. With a real human victim and witnesses of same, not (just) some abstract principle or interpretation of some law looking for a penumbra.

    • The problem is that the statements and rulings of SCOTUS cases–actually most legal cases–are so full of terms of art and legal constructions as to be very difficult, sometimes impossible, for those not versed in law to read or understand.

      • odys

        Oliver Wendell Holmes said :” Good sense makes good law.”

        I do not think most of the arcane legal crap is necessary for a logical well-informed person. First off, the constitution is exactly as it reads, it is only when the court tries to violate the constitution do we get weird reasoning like Roberts with the Obamacare mandate.

        The constitution is silent on marriage. So the 10th amendment says that is a state issue, but Kennedy had to twist himself into a pretzel to justify his decision.

  • One of the greatest services Trump could do for this country would be to return it to a true “originalist” interpretation of the Constitution and start shutting down every bit of the US government not in conformance with Article I, Section 8. The one-size-will-be-made-to-fit-all approach implicit in Big Government is a major factor in tearing this country apart.

    • David Antonini

      Gun fans would be so upset, as with the military, as a standing army and personal rights to guns (outside of a organised militia at the local level) were contrary to the original intent of the framers of the constitution.

      • Then, with respect to a standing army, the “necessary and proper” thing to do is to amend the Constitution, which should have been done in 1812–I’ve no idea why it wasn’t. As to a “personal rights to guns,” other than to refer you to the Heller decision and the Federalist Papers, I’m not going to bother trying to remedy your ignorance, which I suspect would be a waste of my time anyway.

        • David Antonini

          Ignorance like the Heller decision reversing multiple judgements pre-1900? Ok, yes, remedying my study of earlier SCOTUS judgements would be a waste of your time.

  • Uxi

    I don’t expect Ginsburg to honor her foolish words about retiring and moving to New Zealand after Trump won anymore than the Hollyweird leftists who said they would move… and aren’t. She is already 83, though and has had cancer once already. She has fair odds of dying before Trump’s term(s) ends, which is why liberals were asking her to retire a couple years ago…

    • Strass Luna

      She has had cancer twice. The third one will be the charm.

      • JunkMonkey

        No need to wish for her death, but I think you are quite possibly right. Hard to imagine her lasting that much longer, just because of her history.

        • Strass Luna

          I had immunotherapy chemo for leukemia which ended in July of 2015. I am in great health otherwise, but even with the newest and best treatment, treatment takes it toll. And she has had both plus radiation.
          Kennedy will resign and Thomas has hinted at same. I see a sane panel of the supreme returning. One which puts the people first, not their view of how things should be.

          • JunkMonkey

            Agreed, but Kennedy’s and Thomas’s replacements won’t make the court much more conservative (well, maybe Kennedy’s since he’s not really reliable on that front), but it will solidify a more Constitutional bent for a couple of decades, anyway. It is certainly better than the two who have said they will take their Latina experiences into consideration when interpreting the law, which is almost the definition of legislating from the bench! Hopefully Breyer will step down, too. He’ll be 82 by the time Trump’s first term ends.

  • John_Smith_57_p

    Regardless of the election results, the Supreme Court of the United States has gotten out of hand. Justices are not elected, but instead are appointed for lifetime terms to a body that is said cynically to be nonpolitical. Yet the Supreme Court has become so political that we are electing presidents to select Justices! That is crazy.

    We should change the Supreme Court to make it nonpolitical. Maybe staggered 9-year terms would help. Or expanding the Supreme Court and having random panels hear cases. Or even recognizing reality and voting for justices.

    The real problem is that the Supreme Court has too much power. It has become a political and legislative body. Justices get that kind of power and they do not want to give it up. They write these complex and lengthy opinions that purport to say a lot but have little to do with real thinking. They are divorced from the real world and its political pressures in some senses, but practice politics in others.

    Other countries seem to have avoided this insane power grab by the courts. In Japan, for example, the courts have a very limited role. The Supreme Court members are little known and their decisions have no precedential value. The system works fine, and their justice system has more to do with justice than ours.

    Of course our country is not Japan, and we do not want to be. But after an election like this to just hear about stacking the Supreme Court for the next 25 years rather than any calls for reform is disappointing. Just because it is our guys in power does not mean that the power is appropriate.

    • brianOO7

      The court has acquired its outsize power because progressives have given it the role to rule on substantive rather than procedural bases as it was intended by the republic’s founders. Thus, Clinton’s vow to appoint judges who would legislate a progressive agenda from the bench. The answer is returning the court to its proper role.

  • brianOO7

    xxx

  • dilsin

    The right has a habit of picking justices who “evolve and grow” once seated. Just like the living and breathing constitution that is always changing to suit the progressive agenda, so too do the justices. I hope Trump will do a better job vetting his candidates.

  • Les Déplorables

    Ginsburg will need to recuse herself from EVERY case involving a challenge to the Trump administration because she has already made her bias quite clear. As for potential picks, what Trump should do is go over an accurate summation, assuming that is possible to prepare, of every potential jurist’s positions on constitutional issues (or other issues of importance) indicated in their decisions on cases over which they have presiding, and WITHOUT ANY PERSONAL IDENTIFYING CHARACTERISTICS indicated in such summations. In other words, a blind choice. The last thing the country needs is Supreme Court justices chosen on the basis of “identity politics”.

  • FightingSiouxMike

    Well written. I’d love to see an attempt at term limits!

  • LCDR

    The author assumes a suspension of the laws of nature in declaring that Trump will only have one Supreme Court pick in his first term. Of the three justices he cited, two are in their 80’s and the other is just short of his 80’s. This is the prime age for Supreme Court justices to leave the scene without anyone asking them to. I would bet that Trump not only has Scalia’s vacancy to fill, but he will have one of these three’s vacancy to fill as well in the next four years.