Some conservatives support Donald Trump in the hopes that he will burn down the GOP establishment and cause a more principled and pugnacious Republican Party to arise from its ashes. They are willing to forgo nominating a conservative in 2016 to obtain better outcomes in the future.
Conservatives should reevaluate this strategy, taking into consideration the fact that nominating Trump will likely ensure a non-originalist Supreme Court for decades to come.
The next president may nominate as many as four Supreme Court justices and determine the trajectory of the Court’s jurisprudence for a generation or longer. By the end of the next president’s first term, four of the current justices will be more than 80 years old, and six will be older than 70. Supreme Court justices serve lifetime appointments, and if recent trends continue, the new nominees will serve 30 years or longer.
In the early 1980s, conservatives launched a long-term effort to restore respect for the Constitution and mitigate some of the harm activist judges had done. That movement has made significant progress over the last 30 years. If the next president prioritizes that project, America could finally have a consistently originalist majority on the Supreme Court. This would create an opportunity for the Court at least to ameliorate some of its worst excesses—cases like Roe v. Wade.
If Hillary Clinton wins the presidency, she will ensure the failure of that endeavor. This is obvious. What may be less obvious is that electing Trump will likely lead to the same outcome.
Donald Trump Supports Leftist Jurisprudence
As has been extensively chronicled, Trump is not a conservative. His views on the judiciary are no exception. Trump recently repeated liberal smears against Justice Scalia—painting him as a racist for questioning the efficacy of affirmative action.
Trump is also on the record supporting the Supreme Court’s Kelo decision “100 percent.” In Kelo, the Court greatly expanded the government’s authority to seize private property. In supporting Kelo, Trump sides with justices Stevens, Souter, Ginsburg, Kennedy, and Breyer against justices Scalia, Thomas, Rehnquist, and O’Connor.
In general, Trump touts his ability to make deals and get along with everyone. This includes the likes of Harry Reid, Nancy Pelosi, and Chuck Schumer. That is precisely what conservatives want to avoid from Supreme Court nominees. A president who compromises with Senate Democrats on judicial nominees is far more likely to nominate a Justice Souter or Kennedy than a Justice Scalia or Thomas.
If conservatives want to maximize the possibility of appointing justices who won’t balk at striking down Obamacare, overturning Roe, and preventing executive overreach, they need to elect a conservative president willing to stand on principle and expend political capital fighting on behalf of originalist nominees. This does not describe Donald Trump.
Even if Trump were a dedicated conservative, picking consistently originalist judges is far more difficult than it seems. President Reagan nominated Justice Kennedy, who wrote the gay marriage decision. President Ford nominated Justice Stevens, who wrote Kelo v. New London, a decision that empowered the government to seize property from one private citizen and give it to another. President George H.W. Bush nominated Justice Souter, who eventually voted against overturning Roe v. Wade and in favor of prohibiting prayer at high school graduations.
The Republican primary field contains a number of conservatives who have spent their entire adult lives thinking about the importance of judges who respect the Constitution. Many of these candidates have long records of dedication to the Constitution and supporting judges who will interpret it as it was originally understood. If conservatives prioritize restoring constitutional governance, they should choose one of those candidates rather than Trump.
Why the Supreme Court Really Matters
The fact that a vote for Trump would likely defeat the originalist project should cause conservatives to reevaluate the cost-benefit analysis that led them to support him. The likelihood of a non-originalist majority controlling the Supreme Court for decades is too high a price to pay for the slim possibility that voting for Trump may—eventually—create a new and better Republican Party
In the last decade, the Supreme Court has had a monumental impact on American life. The Court has: imposed same-sex marriage nationwide, rewritten Obamacare on two occasions, and undermined states’ ability to enforce immigration law. If Trump or Clinton were able to replace Justice Kennedy or Scalia, both of whom would turn 84 before the end of the next presidential term, these sorts of decisions would likely increase in frequency and absurdity.
The Court could find the death penalty unconstitutional, create a constitutional right to assisted suicide, eliminate any restrictions to abortion on demand, and vastly expand the power of agencies like the Environmental Protection Agency. The possibility of overturning Roe in such a circumstance would be precisely zero.
On the positive side of the ledger, the Court has recently protected the Second Amendment, refused to allow the government to censor movies that mention politics, protected religious liberty, and curbed some instances of President Obama’s executive overreach. A hypothetical Court dominated by justices nominated by presidents Obama and Clinton would reverse each of those precedents and push the law in the opposite direction.
The Lower Courts Are Also Very Influential
This problem is not limited to the Supreme Court. Most lower-court judges also serve lifetime appointments. The vast majority of cases never reach the Supreme Court. In those cases, a lower court has the final word. Recently, lower courts have settled cases involving the right to carry firearms, Obamacare, and abortion because the Supreme Court refused to hear an appeal. Lower-court decisions have significantly impacted Second Amendment doctrine in particular.
President Obama has already significantly reshaped the lower courts. For example, he established a majority of Democratic-appointed justices on the influential DC Circuit Court of Appeals. The new majority was very likely responsible for negating a previous opinion finding that Obamacare did not authorize federal exchanges to provide subsidies. A Hillary Clinton presidency would solidify and further the trend President Obama has begun.
Even if Trump or future Republican politicians took steps Trump supporters favor, courts filled with Democratic nominees might simply declare them illegal. Courts have already blocked states from enforcing immigration law and defunding Planned Parenthood—two of conservatives’ highest priorities. Conservatives simply cannot afford to sacrifice the 2016 election in order to rebuild for future years.
In all likelihood, a vote for Trump is a vote for a non-originalist Supreme Court majority that will endure for decades. In that case, a vote for Trump is a vote for more decisions like Roe and Obergefell. That is an outcome no conservative should be willing to risk.