The Supreme Court is independent, yes, but Congress has several options for exercising control over the justices.
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.
Trumpism is inconceivable without the pairing of, on the one hand, a populist core driven by economic dislocation to the arms of a would-be savior and, on the other, an immovable bedrock of cultural conservatives who have embraced—out of a desperate desire to dislocate the status quo, but a desperation that seems to have morphed into an unaccountable enthusiasm—a candidate who obviously does not share their values personally and probably does not believe in them politically.
Both of these bases are traceable to the Progressive constitutional philosophy they purport to reject. The populism derives from its original strain—Presidentialism, which promises executives who are not merely chief magistrates but salvific figures. The second is not a derivative of but rather an immune reaction to Progressivism’s post-New Deal mutation: judicialism, which has frustrated the ability of cultural conservatives to act on their values.
The first—Trump’s economic populism—is dually flawed. It assumes both a magical economic power that conservatism has, to now, held government wields destructively but not constructively, as well as a concentrated presidential power of which conservatism, being wary of power generally, has also long been suspicious.
The best evidence of Trump’s unconservatism is his fanatical use of the first-person singular: “I will make America great again”; “I am the only one.” This sounds very much like then-Professor Wilson’s monomaniacal conception of the presidency:
His is the only national voice in affairs. Let him once win the admiration and confidence of the country, and no other single force can withstand him, no combination of forces will easily overpower him. His position takes the imagination of the country. He is the representative of no constituency, but of the whole people.
Save for the comparative sophistication of Wilson’s theory—who had at least worked his out; Trump’s take is simply his own reflection staring back from the water—these are indistinguishable. Yet Wilson had the honesty to assault the Constitution forthrightly. Trump claims a latter-day devotion to original intent. His remedial constitutional education should start with Article I.
That provision delineates the powers of the First Branch, Congress, with which a President Trump would share power and from which much of his own authority to execute the law would derive. Thus James Madison: “The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts therefore, properly executive, must presuppose the existence of the laws to be executed.”
Wilson’s view of the presidency triumphed in the 20th century, somewhat in fits and starts, but it certainly has been ascendant since the Cold War. President Obama’s use of executive authority has pushed it in heretofore unknown directions domestically. But a President Trump, elected on an explicit platform of salvation, would mark its perfection. (Hillary Clinton, too, is a devotee of presidentialism, unlike Trump, she does not promise a break with the Progressive past.)
Even President Obama’s flamboyant nomination promises in 2008—we would remember that “this was the moment when the rise of the oceans began to slow and the planet began to heal”—were made in the first person plural. Here, by contrast, is Trump announcing his candidacy (emphases added):
I’ll bring back our jobs from China, from Mexico, from Japan, from so many places. I’ll bring back our jobs, and I’ll bring back our money.… I will build a great, great wall on our southern border. And I will have Mexico pay for that wall. … I will stop Iran from getting nuclear weapons. … Sadly, the American dream is dead. But if I get elected president I will bring it back bigger and better and stronger than ever before…
Suffice it to say that we are safe from Wilson’s fear that some presidents “deliberately held themselves off from using the full power they might legitimately have used, because of conscientious scruples, because they were more theorists than statesmen….” We are on to a new threat, which Wilson regarded as an opportunity. The professor again:
And in proportion as the President ventures to use his opportunity to lead opinion and act as spokesman of the people in affairs the people stand ready to overwhelm him by running to him with every question, great and small. They are as eager to have him settle a literary question as a political; hear him as acquiescently with regard to matters of special expert knowledge as with regard to public affairs, and call upon him to quiet all troubles by his personal intervention.
Only a docile people would not be insulted by this notion of adults running to a parent figure for advice on every question, whether it pertains to government’s scope or not. Conservatism used to conceive of that scope narrowly. The assumption was that the private sector “create[d] jobs” unless impeded by the public sector. The further assumption was that jobs came from economic activity. Now the banner of conservatism is carried by a demagogue who, in his personal name, promises to create jobs politically by restricting economic activity.
What is this but the parent figure of Wilson’s conception? (“You have 24 days to make every dream you ever dreamed for your children, for your family for your country to come true.” One guess: Who said it, Willy Wonka or Donald Trump?)
What is portrayed as Trump’s empathy, it should be added, is wholly different from a constructive political response to what is unquestionably serious and persistent economic distress, which can range from alleviating poverty to supporting job retraining to creating conditions that reward innovation. But central to those, at least to the last of them, is a recognition that there are certain things government can do well, but the public sector cannot, nor should it, compel private-sector employment, much less along politically specified geographic criteria.
Meanwhile, if Trump’s inflamed conception of the presidency marks the triumph of constitutional Progressivism, his support among religious conservatives is a reaction against it. Progressivism mutated in post-New Deal jurisprudence when jurists who had believed in judicial deference for purposes of Franklin Roosevelt’s legislative program suddenly supported an active judiciary for promoting rights to which, on the basis of indecipherable standards, they accorded special status.
The results, including Roe v. Wade and, more recently, U.S. v. Windsor and Obergefell v. Hodges, have effectively disenfranchised religious conservatives who would otherwise have been able to make arguments for their political views in the political arena, a place where they could have won or lost fair and square. Losing there would still have bruised them, to be sure, but it would not have deformed politics nearly as much as the wholesale attempt to delegitimize their views.
Instead, political parties have aligned almost precisely along views on these issues—Roe in particular—and frozen immovably, such that according to one report, a conference call on the Republican Party’s nominee for President of the United States boasting about sexual assault, which under any normal political condition ought to be disqualifying, featured a member of Congress making an apologia for Trump on the grounds that abortion was a more important issue.
It is more important only insofar as Roe has left no outlet for it other than to inflame the stakes of every judicial nomination and, consequently, every presidential election. By contrast, leaving such matters to the discretion of local majorities would allow variation in policy while also allowing people who feel disenfranchised to express themselves politically. Under such circumstances, there is no chance of abortion or same-sex marriage being everywhere banned and every chance of people’s minds changing—in either direction—over time. (Justice Kennedy’s tendentiousness aside, liberty finds every refuge in a politics of doubt, one in which people who lose today have a hope of winning tomorrow.)
It is entirely possible a substantial political realignment might result as voters and candidates who currently feel trapped by judicially driven disputes reconsider other issues on which they do not align with their party identifications today. Certainly fewer would tolerate the bad behavior of either candidate in this cycle if the centrality of the judiciary did not so inflame the stakes of the next Supreme Court nomination, and with it, the election of the next president.
But the Court is so inflamed. Consequently, even if it is not reasonable to believe Trump is genuinely committed to the type of justices he claims, it is wholly reasonable to be profoundly concerned about the future of the judiciary. Yet the fact that such could drive presidential elections in the face of such an otherwise abhorrent nominee, who is obviously so loosely committed—if that—to the issues in question, indicates that the burner heating the Court needs to be turned down. The problem is that the political branches are waiting for the justices to reduce their own heat. Elected officials are the ones who need to reach for the dial.
But the constitutional tenets of contemporary Progressivism cannot tolerate the Court occupying an ancillary place in national policy rather than a central place. Trump is not a break with this anti-Constitutionalism. He is the culmination of it.