Justice Antonin Scalia is dead. Justice Ruth Bader Ginsburg is 83. Justice Anthony Kennedy is 80. And Justice Stephen Breyer is 78. With one Supreme Court seat vacant and three more vulnerable to the ravages of time, our next president may well be able to substantially shape American jurisprudence for decades to come.
The legitimately high stakes of the SCOTUS game constitute a difficult argument to dismiss this election cycle. That's particularly so on the right, where a conservative Supreme Court that could overturn Roe v. Wade or throw out some loathed legislation like ObamaCare is something of a white whale. As conservative pundit Hugh Hewitt argued at The Washington Examiner, in the 2016 election, "it's the Supreme Court, stupid." So if you have any sympathy for limited government, any concern for the Constitution and rule of law, Hewitt said, hold your nose and vote Trump.
That view has been echoed by other notable Trump backers, including theologian Wayne Grudem — which is to say, it's hardly a fringe perspective. Trump is collecting supporters, however reluctant, for whom SCOTUS is all that matters.
The major flaw in this line of reasoning is the utter lack of evidence to suggest Trump is capable of delivering the sort of nominees conservatives (let alone libertarians like myself) want. True, he has released a list of potential justices whose credentials have reassured some court-centric voters. But with a candidate as mercurial as Trump, that list is meaningless: Hastily composed, it includes a Texas judge who regularly mocks Trump on Twitter (sad!). Worse, within hours of sharing the list, Trump indicated he would not be bound by it once in office.
A better guide to Trump's SCOTUS potential is his weird love affair with eminent domain, and specifically, with Kelo v. New London (2005), the one Supreme Court case where we definitely know what Donald Trump thinks.
Trump has a well-established history of affection for eminent domain use and abuse. Most famously, he hounded an elderly widow, Vera Coking, in Atlantic City to give up her house so he could build a limousine parking lot for the now-failed Trump Taj Mahal casino. Coking refused, and with the help of the nonprofit Institute for Justice (IJ), she won her case.
That was in 1998. Seven years later, another case went to court in which a developer once again sought to use eminent domain to confiscate privately-held land for private building purposes. IJ again worked to defend against what amounts to state-facilitated theft, but this time the bandits won. That case was Kelo v. New London, and in the good company of about eight in 10 Americans, conservatives and libertarians were pissed.
But Trump loved it. "I happen to agree with it 100 percent," he said of the Kelo majority in an interview on Fox. His illogic was simple: If the government wants the development to happen, it should happen.
"If you have a person living in an area that's not even necessarily a good area, and government, whether it's local or whatever, government wants to build a tremendous economic development, where a lot of people are going to be put to work and make [an] area that's not good into a good area, and move the person that's living there into a better place — now, I know it might not be their choice — but move the person to a better place and yet create thousands upon thousands of jobs and beautification and lots of other things, I think it happens to be good." [Trump, via RedState]
Trump himself probably doesn't realize it, but his opinion here — which diametrically opposed the conservative minority in a remarkably anti-populist way for a candidate who relies on right-wing populists — is revealing.
In fact, where SCOTUS nominations are concerned, it tells us all we need to know.
First, it says Trump is no originalist. Justice Sandra Day O'Connor was correct in her Kelo dissent argument that the "Founders cannot have intended this perverse result" when they included eminent domain for limited public use in the Constitution. O'Connor quoted James Madison, the father of the Constitution, in his description of just government as one "which impartially secures to every man, whatever is his own." Constitutional originalism has been the top criterion for conservative court nominees for years, but in Trump it is nowhere to be found. (He doesn't even know how many articles the Constitution contains.)
Second, Kelo tells us Trump defaults to defense of government rather than liberty. His approach to jurisprudence is the opposite of strict scrutiny, in which the burden of proof is placed on the state to justify alleged violation of our constitutional rights and freedoms. For Trump, the burden of proof is on the victim to explain why a tremendous, beautiful, huge, and — crucially — government-endorsed project or program should not occur.
With nominees in this mold, SCOTUS would become a rubber stamp of approval for every whim of the state.
Of course, there are plenty of other reasons to be skeptical of a Trump SCOTUS pick, not least of which is his disinterest in defending the First and Fourth Amendments. Meanwhile, if poll numbers continue as they have of late, Trump will lose so massively this November it will be laughable to think we once worried how his presidency might work. And, yes, Clinton's SCOTUS picks will certainly have flaws.
Still, all that together fails to vindicate a Trump vote on grounds of SCOTUS composition. On the contrary, Donald Trump's record on SCOTUS, Kelo, and eminent domain is just more evidence that he no more deserves the keys to the White House than he did to Vera Coking's home.