The Progressive apoplexy over Donald Trump—which is justified on myriad grounds, many of them other than those his critics are articulating—ought not obscure this decisive fact: Trumpism is a disease of Progressive constitutionalism. Its symptoms include an inflamed presidency and Supreme Court—and embrace of the former and a reaction against the latter.
Earlier this month Jack Balkin (Yale Law School) and I found ourselves on an APSA/Claremont Panel on “The Legacy of Justice Antonin Scalia,” alongside Hadley Arkes and Ralph Rossum. We couldn’t find anything to disagree about.
Like Mike Rappaport and much of the broader world, I’ve been baffled by Justice Ruth Bader Ginsburg’s New York Times ruminations—though not in the same way. Many of her observations strike me as obviously right. (It is in fact high time to move to New Zealand, or some place with lower mountains and even less government). And why should we heap opprobrium on a public official who actually tells the truth? She is wrong, however, not necessarily as a general matter but on her own terms, in deeming a Trump presidency an unthinkable horror: it might be her finest hour. RBG…
There are many reasons for classical liberals to oppose Donald Trump in the general election, but Supreme Court appointments are not now one of them. We can hardly be confident that his appointments will make America great, but we can be pretty confident that Hillary Clinton’s will end the current project of making the Supreme Court a court of law rather than a dynamo of Progressive politics.
After Donald Trump’s announcement of eleven judges whom he would consider appointing to the Scalia vacancy, many libertarian and conservatives commentators still doubted that Supreme Court appointments were a good reason to support Trump in the general election. They conceded that that those on his list were generally excellent candidates, but suggested that Trump could not be trusted to appoint people like them.
And they certainly have a point: on many issues Trump points in no direction more consistently than a weathervane. Moreover, he has supported a variety of legal causes, like property condemnation on behalf of private development, that would not likely fare well with the kind of justices he has promised to appoint.
Nevertheless, I believe there is a substantial probability, even a likelihood that Trump would follow through on his judicial promises.
The Supreme Court yesterday suggested a compromise solution to the contraceptive mandate for religiously oriented service organizations that object to contraception, and required the parties to comment on whether it met their needs. This order, made after oral argument, is very unusual. It likely reflects the fact that the Court was divided 4-4 on the question of whether the Obama’s administration previous accommodation violated the Religious Freedom Restoration Act.
Some initial responses suggest that the compromise might be welcomed by both sides. It should make us reconsider whether a Supreme Court with an equal number of justices is a bad development for the nation. A Court with nine justices would likely have come down on one side or another, embittering the side that lost in the culture wars. And when the culture war divide follows the partisan divide on the Supreme Court, the decision would only increase partisan distrust of the institution.
Greater efforts at compromise would be a hallmark of 4-4 court with such divides. Justices like to render decisions as matter of craft and institutional obligation and would tend to avoid deadlock, where possible.
On Monday, the New York Times reported that Justice Clarence Thomas asked various questions at oral argument, something he had not done in 10 years. In the first version of the story written by Adam Liptak, the sole explanation offered was one that was not complimentary to the Justice: It was hard to escape the conclusion that the absence of the voluble Justice Scalia, who had dominated Supreme Court arguments for nearly 30 years on the bench, somehow liberated Justice Thomas and allowed him to resume participating in the court’s most public activity. I was going to criticize this obvious bias, but…
The sad death of Justice Antonin Scalia reminds us that one of the most important reasons for voting for a President is Supreme Court nominations. Republican presidents in the last two decades have made substantial progress in restoring republican government by appointing judges who are substantially more faithful to implementing the constitutional design than their predecessors. Nominating Donald Trump would put all this progress at risk. Trump does not have the intellectual resources, the temperament, or the inclination to advance constitutionality fidelity.
First, he has demonstrated sheer ignorance of the our judicial and indeed constitutional system. In the debate on Thursday in defending himself from charges that he had wrongly held up his sister as a model judge, he argued that she had signed the same “bill” as Samuel Alito when they were on the appellate court together. Trump does not seem to know the difference between legislation and a judicial opinion. And he was actually wrong about the judicial decision of which he spoke. Then-Judge Alito dissociated himself from key parts of Maryanne Trump Barry’s opinion on abortion rights.
Second, Trump has commitments that make it very unlikely that he would appoint an originalist judge.
Two untenable arguments, and one constitutional solution, surround the debate roiling over Justice Antonin Scalia’s successor. One argument, from the Right, is that President Obama is duty-bound, with nearly a year left in his term, not to appoint a successor at all—a claim with no constitutional basis and whose supposed authority in custom is a phantasm. The second, from the Left, is that the Senate’s duty is reflexively to confirm whomever he selects. Yet the Senate is not the executive’s Human Resources Department, confined to checking references and résumés.
At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists . . . insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.”
So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. For instance, if one follows the original meaning that the term “session” in the Recess Appointments Clause is limited to the intersession of Congress, the holding will necessarily rule out recess appointments in all cases but appointments made at the intersession.
Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible!
The United States Supreme Court decides only about 80 cases per term. (Why 80? There are 39 days for oral argument and they really can’t be bothered to sit still for more than two cases a day, or to add argument days.) That’s what any decent county judge handles in a week. Now, granted: normal judges just handle stupid stuff, like who goes to jail for how long or who owes money to someone else. In contrast, the Supreme Court’s business is really heavy, brother—so heavy that the Court has again left a ton of hugely important decisions for the end of…