Embracing originalism is not the only response that progressives might make to conservative nonoriginalism, but there are reasons to think they might.
Ilya Somin has disagreed with me that Trump is likely to be better for constitutional jurisprudence than Clinton. But his arguments rely on the implausible premise that Trump is likely to change the jurisprudential commitments of the Republican party. Even more importantly, he does not address the elephant in the room: Clinton’s appointments would likely return us to a Court unconstrained by our fundamental law.
Ilya is right that if Trump could change the Republican’s basic philosophy of judges from originalism to something else, that would itself impose long-term harm to nation. But Trump’s election is unlikely to have this effect. Trump is not coming into power with a parliamentary majority and or even at the head of a well entrenched ideological movement. The way to think of Trump is that has rented the party for his own ambitions and that he will be forming a coalition with orthodox Republicans who will make up the vast majority of Republicans in the legislature. He is thus going to have to deal with the Republicans who have an independent power base and who hope to be there long after he leaves. That not only includes legislators but the Republican establishment. And as in coalitions generally, he will focus on the issues most important to him where there is least resistance from his partners.
Of course, that does not mean Trump would be without power. On issues where Republicans are divided or where there is substantial populist sentiment on his side, he may transform the party toward his policies, many of which are indeed very bad. Free trade is a paradigm example. But appointments to the Supreme Court are the opposite kind of issue. Republicans are pretty united, and it is an issue dominated by elites. Are members of Federalist Society—the single most important conservative elite in this respect—going to change their views of what makes a good judge because Trump becomes President? That elite was even able to squash an appointment of Harriet Miers that George W. Bush wanted to make. Trump recognizes this point and that is the reason that he has embraced Republican orthodoxy on judicial appointments by putting out a list of sound judges he would consider appointing.
And that orthodoxy does not embrace an extreme deference that would countenance such acts as discrimination against Muslim citizens. It is true that that justices appointed might be more deferential than Ilya would like and less likely to interpret the Constitution as abstractly. But there is a range of views already on this subject among originalists, as my own work on deference and abstraction shows.
Ilya also slights the disaster of Clinton presidency to the Supreme Court and the rule of law. She surely will have two appointments—to Scalia’s seat and to Ginsburg’s. And a third with some substantial probability- Kennedy’s. Even in the first case a strong progressive majority would emerge with the four youngest judges likely all progressives and in the latter case a progressive majority would last for decades. It is true that Republican party would still be committed to originalism, but that commitment would avail the nation little because of the long term effect of the Clinton’s appointments. And as more non-originalist precedents pile up, it would create more obstacles for originalism—how to overrule such cases without becoming a radically disruptive jurisprudence that may be of interest to a few academics but has little real world appeal. Moreover, Clinton’s appointments would have a more dramatic effect on jurisprudence than Republican appointments, because most of the bar and the academy would encourage further leftward drift.
There are many reasons to oppose Trump, but to make the case against him it is not necessary to downplay the difference that Clinton appointments would make to the rule of law.