Whatever additional consequences the upcoming presidential election may have, the vote will determine the future of the Supreme Court. You probably heard this admonition in 2008 and again in 2012, but this time you really should pay attention.
In fact, with the death of Antonin Scalia in February and the continuing stalemate in the Senate over the nomination of Merrick Garland — a centrist appellate judge — to succeed him, the court’s future is already up for grabs. Assuming that Garland’s nomination dies on the vine, the next president may get to appoint no less than four members of the nation’s most powerful judicial body.
Justices Ruth Bader Ginsburg, Steven Breyer and Anthony Kennedy will all be 78 or older by August. Ginsburg, the eldest of the trio, will turn 84 next March.
This means that unless Bernie Sanders pulls off a last-minute miracle at the Democratic convention in July, or the laws of nature are suddenly suspended, the task of remaking the court will fall either to Hillary Clinton or Donald Trump.
For the progressive left — which largely views both Clinton and Trump as unacceptable — the prospect of either candidate assuming office is depressing. But like it or not, the impact of the election on the court is an issue that progressives will have to confront, no matter whom, if anyone, they decide to vote for come November.
I’ll deal with Clinton and what we might anticipate from her in the way of judicial appointments in a future column. For now, I want to focus on what we could expect from President Trump.
Of all the factors presidents entertain and weigh in the nominating process — and over the decades, the factors have ranged from paybacks in return for past support to considerations of geographic, racial and religious balance — none is more important than ideological compatibility.
No president has ever been above the ideological fray. Each and every one, from George Washington forward, has tried to place like-minded individuals on the bench, both to advance short-term policy goals and to secure long-term legacies. There are few more effective ways for presidents to leave their stamps on history. Supreme Court justices are appointed for life, and they wield enormous power.
What does that augur for a future Trump administration? Would his Supreme Court nominations, like those of his predecessors, reflect his ideology and politics?
Apart from the ubiquitous slogan “Make America great again!” — emblazoned on everything from his website to the red baseball caps he distributes — the presumptive GOP nominee is ideologically a scrambled egg. He’s part angry populist, part xenophobic nationalist, part reality-show huckster, part latter-day Benito Mussolini.
The combination appeals to the millions of rubes who have cast primary ballots for him and to mainstream TV and news outlets that have accorded him virtually unlimited airtime in a shameless pursuit of better ratings.
But surprisingly, there is a coherent set of legal goals in Trump’s ideological scramble. Despite all his chaotic blather and bombast — and notwithstanding his penchant for flip-flops, walk-backs and clarifications — Trump has articulated a multitiered, short- and long-term legal agenda that his Justice Department would likely defend all the way to the highest court in the land. For brevity’s sake, I’ve whittled the agenda down to a dozen key points and initiatives:
Donald Trump has shaken up the American political system with his 2016 presidential run. (Wikipedia Commons / CC BY-SA 4.0)
So who might be the legal lions Trump would install on the high tribunal to champion such causes? The appointment process is never a sure thing, and there are several notable examples of newly installed justices — Republicans Earl Warren and David Souter come immediately to mind — who have gone on to disappoint their executive-branch patrons.
Wait, before you go…
- He wants to build a “wall” along the southern border and deport some 11 million to 12 million people who have entered the United States without legal permission.
- He wants to end birthright citizenship for children born in the U.S. to two noncitizen parents.
- He wants to expand the use of torture techniques in the war on terror, advocating methods “a hell of a lot worse than waterboarding,” and he wants to send even more detainees to the prison at Guantanamo Bay.
- He would deny visas to all Muslims seeking legal entry into the United States.
- He wants to repeal Obamacare either legislatively or by means of a new Supreme Court ruling that would overturn the court’s landmark 5-to-4 opinion in 2012, upholding the Affordable Care Act’s “individual mandate.”
- He wants to “open up our libel laws” and reverse The New York Times v. Sullivan decision, the unanimous 1964 ruling that provides journalists and private citizens with First Amendment protections against defamation lawsuits brought by government officials and public figures.
- He would defund Planned Parenthood, ban late-term abortions and select a new Supreme Court justice who may vote to overturn Roe v. Wade.
- He would “consider” appointing justices who would overturn Obergefell v. Hodges, last year’s historic 5-to-4 Supreme Court decision on gay marriage.
- He would defend “religious freedom” against anti-Christian secularists.
- He would disband the Environmental Protective Agency and turn regulation of greenhouse gases, clean water and the like back to the states
because he believes that climate change is a hoax.
- He would support voter suppression, and he has recently spoken out against same-day voter registration in the mistaken assumption that it would permit noncitizens to cast ballots in federal elections.
- He would support the idea of paying federal bondholders less than 100 cents on the dollar in order to bring down the national debt.
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