Many conservatives and libertarians are openly flirting with voting for Donald Trump because they fear ceding control of the Supreme Court to liberals. They reckon that Hillary Clinton's judicial appointments are guaranteed to be awful. Trump, on the other hand, despite all his flaws, has no reason to oppose originalist jurists committed to protecting limited government and constitutional checks and balances.
If it were any other candidate, this would be a reasonable argument. But this is Donald J. Trump we are talking about.
There is no doubt that Trump's list of potential justices — shrewdly released to calm conservatives jittery over his many heterodoxies — is a good one. It includes judges such as 7th Circuit's Diane Sykes, who wrote a stellar opinion defending the First Amendment right of Americans to record police officers in public, and 10th Circuit's Neil Gorsuch, who attacked judicial deference to unconstitutional executive edicts. My personal favorite (for sentimental reasons) is Michigan Supreme Court Justice Robert Young, who married my husband and me, and authored a fantastic opinion overturning the notorious Poletown ruling that permitted Detroit authorities to use the city's eminent domain powers to bulldoze a flourishing neighborhood to make room for a GM factory.
Still, it would be a mistake to put too much stock in Trump's list — and not only because he is an ignoramus who probably thinks judges sign bills into law. Or because his word is worth less than his bankrupt Atlantic City casinos. Or because his temperamental and character flaws are too great to be offset by a good court.
It is because a Trump presidency will have a transformative effect on the GOP itself. Indeed, by the time he's done, the GOP will have little use for originalism or limited government. Whatever the external threat a Clinton presidency represents to these ideas, the internal threat that Trump poses is far greater.
It is unclear how many justices the next president will appoint, but if Clinton only fills the late Justice Antonin Scalia's vacant seat, she'll tip the Supreme Court in a liberal direction. That still does not justify the apocalyptic tone that some conservatives strike, notes Ian Tuttle of the National Review, far from a lefty rag.
That's because setting aside the high-profile cases that both sides use to rally their base, on a day-to-day basis, partisan disagreements don't affect the court all that much. Tuttle notes that between January 2012 and June 2014, the Supreme Court ruled against the Obama administration unanimously 13 times — on everything from recess appointments to abortion clinic "buffer zones." Nor was this an anomaly. Since 1995, more than 40 percent of cases were settled unanimously by the court.
Despite their ideological disagreements, justices are far more united than divided on the law. And presidents, by and large, have respected the independence of the judiciary and left the court alone to settle cases as it sees fit — with some notorious exceptions like FDR. He famously threatened to force justices who struck down the New Deal into retirement and "pack the court" with more pliant ones.
Trump would be FDR on steroids. He savaged Judge Gonzalo Curiel's "Mexican" heritage because the judge didn't dismiss the case against Trump University. If something as low stakes as this can set Trump off, imagine what he'll do if the Supreme Court takes up a challenge to a signature issue of his presidency? A Trump presidency is likely to be a rolling wave of one manufactured constitutional crisis after another.
That, however, isn't likely to be President Trump's worst damage.
To the extent that Trump has a vision for the GOP, it is along the lines of Europe-style workers' parties (his term) such as France's National Front. This is an authoritarian, nationalistic, right-wing party whose main goal is to aggressively realign the economy around the interest of domestic workers by fanning the fires of xenophobia and protectionism. George Mason University's Ilya Somin points out that such a party will have no use for federalism, separation of powers, and individual rights. To the contrary, such commitments are likely to be an impediment to its goals.
It is unclear what the full contours of Trump's judicial philosophy would be, Somin notes, but they are likely to include sweeping executive powers, a narrow view of freedom of speech, and tight restrictions on civil liberties.
If Trump succeeds in remaking the GOP in accordance with his vision, the party's judicial philosophy will change accordingly. The Constitution may not be a living document, but it also not writ carved in stone. It is a malleable text, which is always open to interpretation. There is nothing in it that says originalism is the correct approach. So don't expect Trump's GOP to die on the cross of originalism. Far more likely, says Somin, is that it'll embrace "judicial deference" — or the view that the proper function of courts is to defer to the political branches, not necessarily keep each branch within its constitutional limits. That would be much more convenient for the GOP's new agenda and there are plenty of judges who are inclined to this view already, he says. And the transformed GOP is likely to elevate them and marginalize originalists in the Age of Trump.
Voting for Trump out of concern for the Supreme Court and originalism then is like handing the keys of your church to an arsonist clutching a can of gasoline in one hand and matches in the other — and hoping that somehow he'd spare the inner sanctum and the holy book. He won't.
The tragedy is that by the time Trump burns it all down, the GOP might well be past the point of caring.