Constitutional legalism is no panacea, but it is the best we lawyers can do.
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. Trump will need Republicans to govern. Democrats will oppose him. And little is as important to the base of the Republican Party as appointing justices who oppose the living constitutionalism of the Left. Conceding this issue to the base will give Trump a freer hand to pursue some of his actual core (and in my view very bad) policies that are more heterodox, like opposition to freer trade.
But even if there were only a substantial possibility that Trump will appoint justices in the mold of Scalia and Thomas or even Roberts, that chance differentiates him from Hillary Clinton. She has denounced the list of candidates he has proposed and made it a litmus test for her nominees that they overrule Citizens United. More generally, her campaign reflects the kind of identity politics that demands that the law be shaped to favor certain political groups, whatever a more neutral interpretation would dictate.
Indeed, it is not too much to say that if Hillary Clinton were elected, the constitutional project of making the Supreme Court a legal court would be at end for at least a generation. The effort has not yet met with complete success. But the law looks quite different from the years of the Warren and even Burger Courts. Originalism does not always prevail in judicial decisions but it is taken far more seriously than it once was. And in large measure because the Court takes it more seriously, the academy does as well. The academy’s work, in turn, strengthens the legal culture that can move the Court toward more legally formal approaches.
But if Clinton were elected, she would fill the Scalia vacancy with a justice antithetical to his methodological commitments. (Republicans would then be unlikely to retain the Senate and would in any event have difficulty holding out after an election in which the Democratic candidate won a mandate). This appointment would create a new liberal majority on the Court. And Justice Ginsburg would resign and be replaced by a younger and more radical version of herself. Anthony Kennedy’s seat may also become vacant. Given the legal culture in the bar and in the academy, it is hard enough to keep justices anchored on the Right from drifting left. Clinton’s appointees would be all too happy to be borne along on a tide of Progressivism.
Even bad appointments by Trump (and the Harriet Miers candidacy suggests that cronies are not likely to get through the Senate) would be much less likely to be enthusiastic paddlers along this stream. Ideas that have been marginal—like mandating affirmative action quotas even against the wishes of the citizens of a state, or creating constitutional welfare rights—would become thinkable again. It is often said that a presidential election is momentous for the Court, but this time the claim is accurate.