“Currying Favor To Conservatives”: Be Afraid Of How Much Donald Trump’s Supreme Court Could Change America
It’s now been well over a month since the expiration of Donald Trump’s self-imposed deadline for coming up with a list of candidates from which he would choose Supreme Court nominees, including the one he would name right away to fill the seat of the late Antonin Scalia. When asked about the list, Trump said he thought it would be ready to be released before the convention.
This is not a promise conservatives are going to let him ignore perpetually, and conversely, there’s no particular evidence he cares enough about constitutional law to make this a serious bone of contention.
But, in fact, conservative fears about Trump’s lack of fidelity to their supreme value of limited government could lead to demands for truly radical Court nominees who embrace the idea that right-wing judicial activism is needed to restrain the executive and legislative branches alike.
We are already hearing arguments from conservative legal circles that an atmosphere of lawlessness associated with the Court’s failure to kill Obamacare has contributed to the frustration and extremism reflected in Trump’s successful drive for the GOP presidential nomination. And some of the same critics point accusingly at Trump’s long-standing support for widespread use of the power of eminent domain as showing his contempt for property rights and willingness to use government aggressively.
So it’s not enough to say that conservative legal activists don’t trust Donald Trump any more than other conservatives do: They actually believe he’s a prime example of a politician that judges need to restrain without the deference to the political branches of government that conservatives used to believe in (and that Chief Justice John Roberts exhibited in allowing Obamacare to survive).
And thus: Regular old-school “judicial deference” conservatives like Roberts will not be acceptable to a lot of conservative opinion leaders, particularly coming from Trump. You can expect more and more demands for Justices who share the “constitutional conservative” belief in absolute property rights that permanently debar Congress and the president alike from enacting or administering social-welfare programs or business regulation. This was the philosophy supported by the Court during the early-20th-century period when a chain of decisions begun by Lochner v. United States stymied progressive legislation until FDR’s threat of court-packing and then turnover in justices forced its abandonment.
There’s now a powerful movement in conservative legal circles to bring back Lochner, and there’s probably no quicker route to its restoration than a Trump administration trying to buy favor with those on the right who fear the Donald’s tyrannical tendencies.
If and when Trump releases his SCOTUS prospect list — which he’s promised he will prepare in consultation with the Heritage Foundation — there are a couple of names to look for in particular. One is Texas Supreme Court Justice Don Willet, an outspoken neo-Lochner advocate. Another is Utah Senator Mike Lee, who makes no bones about his belief that the New Deal was and is unconstitutional. And still another might be Lee’s best friend in the Senate, Ted Cruz, if he patches things up with Trump and decides the bench rather than the White House is his destiny.
For progressives, the thing to comprehend is that there are worse things that could come from Trump Supreme Court nominations than the expected fifth vote to restrict or overturn Roe v. Wade or to cripple public-sector unions, terrible as either of those things would be. Precisely because Trump is a loose cannon, he may be convinced to promise his new conservative friends what they really want on the Court: Justices who want to turn the clock back not just to 1972, when abortion was illegal in most states, but to the early 1930s when what we think of as the social safety net was considered a radical and unconstitutional idea.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, May 8, 2016
“The Supreme Court Fight Is About Democracy”: Conservatives Want To Bring Back Pre-New Deal Jurisprudence
There’s a reason beyond garden-variety partisanship that Senate Republicans resist even holding hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. Their gambit evades a full and open debate over the conservative judicial agenda, which is to use the high court in an aggressive and political way to reverse decades of progressive legislation.
The central irony here: The very conservatives who use “judicial activism” as a battering ram against liberals are now the aggressive judicial activists. It’s precisely because Garland’s record reveals him to be a devout practitioner of judicial restraint that an intellectually frank dialogue over his nomination would be so dangerous to the right. It would expose the radicalism of their jurisprudence.
Some conservatives are quite open about this, and few have been more candid than George F. Will, my Post colleague. To begin with, he deserves credit for making clear in his most recent column that Garland really is a stout advocate of judicial “deference” and for pointing out the absurdity of the Republicans’ refusal to take up his nomination. And in the past, Will has been unusually direct in defining the stakes in our battles over the role of the courts.
In a 2014 column aptly headlined “Judicial activism isn’t a bad thing,” he wrote: “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.”
Will’s attack on “a spurious majoritarian ethic,” of course, is another way of criticizing the workings of democracy. Where does this lead?
It leads to the Citizens United decision (which Will supports as emphatically as I oppose it) that overthrew decades of precedent and a century of practice involving limits on the power of big money in politics; to the Supreme Court’s evisceration of the Voting Rights Act; and to the scrapping of all manner of legislation aimed at protecting workers’ rights, the environment and consumers. Historically, it’s an approach that, more often than not, leans toward employers over employees, creditors over debtors, property owners over less affluent citizens, and corporations over individuals.
We know what this approach looks like because it’s the one the court pursued for decades before the New Deal. It is this pre-New Deal jurisprudence that conservatives want to bring back. Some conservatives have talked openly about the “Constitution in Exile,” referring to the way our founding document was once read to overturn many New Deal and Progressive Era laws. Starting in the late 1930s, the court moved to a different approach that gave Congress broad latitude to legislate on matters related to social justice and economics and saw its task as intervening primarily on behalf of individual rights.
Will’s outright embrace of “judicial activism” has brought him some critics on the right. One of them is Ed Whelan, president of the Ethics and Public Policy Center and a leading defender of the Senate Republicans’ current strategy. “Most contemporary conservative proponents of judicial restraint,” Whelan has written, “are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question.”
Whelan added that his approach would, like Will’s, allow judges to “enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth.” But it would also “prevent judges from inventing rights and powers that are not in the Constitution.”
Here’s my translation of Whelan: He’s instructing Will to notice how originalism — the conservative theory that insists we can apply the original meaning of the Constitution’s words and the Founders’ intentions with some ease — leaves judges with plenty of power to toss out progressive laws. At the same time, it gives conservatives grounds to oppose liberals on such issues as abortion and gay marriage.
I’ll stipulate that there are some legitimate conservative arguments against liberals on their own forms of social-issue activism. But I’d insist that we will understand this court battle better if we pay attention to Will’s straightforward language: Through originalism and other doctrines, conservatives have embraced an astonishingly aggressive approach to judging. It allows them to reach outcomes through the courts that they cannot achieve through the democratic process.
At heart, this is a debate over how we define democracy. It’s also a struggle over whether government will be able to serve as a countervailing force to concentrated economic power.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 20, 2016
“Scalia’s Boring Legacy”: He Simply Became A Reliable Tool Of Retrograde Social Conservative Orthodoxy And Corporate Power
I was determined yesterday not to comment on Justice Antonin Scalia’s legacy on the Supreme Court, choosing to focus instead on the political implications of the vacancy. I remain committed to that, in large part because the man only barely passed away and I feel that anything I might say about his impact on law, culture and jurisprudence would be tinged with inappropriate (?) negative passion I might later regret.
Fortunately, I don’t have to. Back in 2014 here at Washington Monthly, Michael O’Donnell wrote a fantastic book review of Bruce Allen Murphy’s “Scalia: A Court of One,” that says most of it for me:
Somewhere in the mid-2000s, Scalia ceased to be a powerhouse jurist and became a crank. He began thumbing his nose at the ethical conventions that guide justices, giving provocative speeches about matters likely to come before the Court. He declined to recuse himself from cases where he had consorted with one of the parties—including, famously, Vice President Dick Cheney. He turned up the invective in his decisions. His colleagues’ reasoning ceased to be merely unpersuasive; it was “preposterous,” “at war with reason,” “not merely naive, but absurd,” “patently incorrect,” and “transparently false.” More and more, he seemed willing to bend his own rules to achieve conservative results in areas of concern to social conservatives, like affirmative action, gay rights, abortion, gun ownership, and the death penalty. Above all, Scalia stopped trying to persuade others. He became the judicial equivalent of Rush Limbaugh, who has made a career of preaching to the choir. But Limbaugh is not merely a shock jock; he is also a kingmaker. Scalia’s position on the bench precludes any such influence. As a result, he has more fans than power.
The conservative movement is trying to treat Scalia as a giant of law and one of America’s greatest and most influential jurists. I’m not so sure about that. His position on the court and his votes in some crucial 5-4 decisions have obviously made a gigantic impact, but it’s not at all clear that his arguments will have had generations-long precedent-carrying weight. Particularly toward the end of his career he simply became a reliable tool of retrograde social conservative orthodoxy and corporate power. Scalia ceased to be interesting because you always knew exactly where he would stand, and that every year he would say something eyebrow-raisingly nasty and clueless about evolution, the sexual revolution or some similar topic. In that sense, I would argue that John Roberts has actually been more interesting and influential recently because one can at least speculate on potentially unconventional arguments and stances he might take.
In the end, what many characterized as Scalia’s incisive wit and questioning simply became boring, because it was always in the service of the same agenda, rendering it devoid of truly honest insight. Scalia simply became as boring as your conservative uncle at Thanksgiving. As O’Donnell says:
Scalia’s fall has been loud and it has been public. He is the Court’s most outspoken and quotable justice, and whether he is flicking his chin at reporters or standing at the lectern attacking secular values, he makes headlines. So when he was passed over for the position of chief justice in 2005, the legal world noticed. President George W. Bush had cited Scalia as well as Clarence Thomas when asked as a candidate to name justices he admired. Yet when Rehnquist suddenly died, Bush did not seriously consider elevating Scalia. “Nino” had rarely demonstrated leadership in assembling or holding together majorities; he had alienated every one of his colleagues at one point or other. His flamboyant antics off the bench might compromise the dignity of the office of chief justice. He would be the devil to confirm. Bush nominated instead John Roberts, an equally brilliant but far more disciplined judge, and one who was better suited to the responsibilities of leadership. After that, Scalia stopped playing nice and started using real buckshot.
I understand and can sympathize with how upset conservatives are about their loss and about the potential for the shifting of the ideology of the court. But let’s not pretend that the court lost a legal giant on the level of Brandeis, Holmes or Marshall. It didn’t.
By: David Atkins, Political Animal Blog, The Washington Monthly, February 14, 2016
“Teamwork On The Supreme Court”: Discipline On The Left Side, Disarray On The Right
Now that the current term is over for the Supreme Court, analysts are digging into the record to draw conclusions about what happened. In a fascinating analysis, Adam Liptak writes: Right Divided, a Disciplined Left Steered the Supreme Court.
The stunning series of liberal decisions delivered by the Supreme Court this term was the product of discipline on the left side of the court and disarray on the right.
In case after case, including blockbusters on same-sex marriage and President Obama’s health care law, the court’s four-member liberal wing, all appointed by Democratic presidents, managed to pick off one or more votes from the court’s five conservative justices, all appointed by Republicans.
They did this in large part through rigorous bloc voting, making the term that concluded Monday the most liberal one since the Warren court in the late 1960s, according to two political-science measurements of court voting data.
“The most interesting thing about this term is the acceleration of a long-term trend of disagreement among the Republican-appointed judges, while the Democratic-appointed judges continue to march in lock step,” said Eric Posner, a law professor at the University of Chicago.
For example, this session there were 19 SCOTUS decisions that were decided 5/4. In 10 of those, the four liberals voted together and were joined by one conservative. In contrast, the conservatives only voted together 5 times.
Ian Millhiser suggests that the problem for the conservative justices is that they “represent three – and possibly as many as five – distinct versions of judicial conservatism.”
* The Ideologue – Clarence Thomas
* The Partisan – Samuel Alito
* The Reaganite – John Roberts
He points out that Scalia purports to be an “originalist” (like Thomas), but mostly votes as a partisan. And he can’t seem to find a way to characterize Kennedy.
Liptak credits the cohesion among the liberal justices to the leadership of Justice Ginsberg. But I’m also interested in how they managed to pretty consistently pick off one of the conservative justices to vote with them. I was reminded of something Adam Winkler wrote about Elena Kagan almost 2 years ago. He described her as a justice in the mold of Earl Warren.
Warren didn’t accomplish these by embarrassing his colleagues or by making sharper arguments on the merits. Warren was a master politician, one who’d sit with the other justices and bring them along slowly and steadily to his side. He sought to understand other justices’ concerns and address them. Unlike most of today’s justices, Warren was willing to work the halls to gain five votes.
He says this about why Kagan was chosen to be the dean of Harvard’s Law School:
She was seen as someone who could bring together a faculty known for ideological and personal divisions that institutionally hobbled the law school, especially when it came to hiring. As dean from 2003 to 2009, she calmed faculty tensions, launched an aggressive hiring spree that netted 32 new professors, and earned praise from both left and right.
I remember that some liberals opposed Elena Kagan’s nomination. But it strikes me that President Obama would see “bridge-builder” as a necessary role for someone to play on the Supreme Court. It’s exactly how people describe his tenure as President of the Harvard Law Review.
If that’s the case, here’s what we know about the 3 women on the Supreme Court: the senior member is Ruth Bader Ginsberg – the Notorious RBG – tiny woman who throws quite a punch. Then there’s my hero, Sonia Sotomayor, the wise Latina with a heart as big as they come. And finally, there’s Elena Kagan, the bridge-builder. What a team!
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, July 2, 2015
“The Supreme Court’s Ruling Be Damned”: Ted Cruz Isn’t Taking The Marriage Ruling Well
At an event over the weekend, Rep. Steve King (R-Iowa) was asked about last week’s Supreme Court rulings on the Affordable Care Act and marriage equality. The right-wing Iowan, not surprisingly, wasn’t pleased, calling the court decisions “the heaviest one-two punch delivered against the Constitution and the American people that we’ve ever seen in the history of this country.”
Of course, Steve King is expected to say things like this. When presidential candidates go over the top in the same way, it’s a little more alarming. MSNBC’s Benjy Sarlin reported:
Sen. Ted Cruz (R-Tex.) went so far as to call for a constitutional convention to overturn the court’s decision while campaigning in Iowa, according to CNN. In an interview with Sean Hannity he called the back-to-back rulings on health care and gay marriage “some of the darkest 24 hours in our nation’s history.”
Hannity, incidentally, found Cruz’s rhetoric quite compelling, responding, “I couldn’t say it more eloquently.”
For what it’s worth, it’s not hard to think of some genuinely tragic 24-hour periods in American history. The Lincoln assassination comes to mind. So does the time British troops burned the White House. There were days during the Civil War in which tens of thousands of Americans died on the battlefield. Just in the last century, we witnessed the JFK assassination, Pearl Harbor, and a corrupt president resign in disgrace.
For the Republican presidential hopeful, learning that Americans will have health benefits and loving couples will get married belongs on the same list.
To be sure, while much of the country will probably find that odd, it’s equally important to appreciate what Cruz intends to do with his outrage.
On the Affordable Care Act, the Texas senator will, naturally, continue to push a pointless repeal crusade. On marriage rights, Cruz intends to “focus on defending religious liberty by protecting those who act on their conscience and appointing judges who understand the limits placed on them by the Constitution.”
But it’s the Republican’s plans for the high court itself that stand out. The Huffington Post reported:
To challenge that “judicial activism,” Cruz said he is proposing a constitutional amendment to require Supreme Court justices to face retention elections every eight years. […]
Under Cruz’s proposed amendment, justices would have to be approved by a majority of American voters as well as by the majority of voters in least half of the states. If they failed to reach the required approval rating, they would be removed from office and barred from serving on the Supreme Court in the future.
Soon after, the senator said he “absolutely” believes county clerks in Texas should freely refuse marriage licenses to couples who wish to marry, the Supreme Court’s ruling be damned.
As ridiculous as Cruz’s posturing seems, it’s important to remember the broader context: national GOP candidates have a built-in incentive to be as hysterical as possible right now, in the hopes of currying favor with the party’s base. Mild, reasoned disappointment with the court doesn’t impress far-right activists; unrestrained, hair-on-fire apoplexy does.
Ted Cruz appears to understand this dynamic all too well.
By: Steve Benen, The Maddow Blog, June 29, 2015
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