The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Antonin Scalia's untimely death has brought home the importance of the outcome of the 2016 election to the Supreme Court's future. Scalia's seat is likely to stay open until 2017, and the next president will enter office with two octogenarians on the high court (plus Justice Stephen G. Breyer, who will be 78), making at least one more vacancy during his term a statistical likelihood.
Which leads to the obvious question for Republican voters: Do you really want Donald Trump choosing the next Supreme Court justice? By all indications Trump hasn't given a moment's thought to the Constitution. I wouldn't be surprised if he thinks the U.S. Constitution is a luxury yacht.
Since he announced his candidacy, Trump has threatened to ignore those who are carping about free speech and shut down parts of the Internet; he has promised to summarily deport those who are suspected of being illegal immigrants, without due process of law; he has endorsed extensive campaign-finance regulations that fly directly in the face of the First Amendment; he has vowed to restrict the Second Amendment rights of those on the terror watch list, again without due process; he has praised Franklin Roosevelt's internment of American citizens, suggested that natural-born Americans can be deported against their will, and proposed that American Muslims be barred from reentering the country; he has described as "wonderful" a Supreme Court ruling that obliterated the "public use" limitations on the invocation of eminent domain; and he has refused to rule out registering Americans on the basis of their faith.
More recently, he has endorsed torturing terrorism suspects and killing terrorists' families, domestic and treaty law be damned.
Meanwhile, consider the leading alternatives. Sen. Ted Cruz (R-Tex.) is a Harvard Law School graduate, former Supreme Court clerk and a former solicitor general of Texas who argued numerous times before the court. He has been studying the Constitution since he was in high school. Sen. Marco Rubio (R-Fla.) is a University of Miami School of Law graduate and has a excellent team of legal advisers, including the VC's own Nick Rosenkranz.
Five-to-four Supreme Court opinions protecting First and Second Amendment rights, limiting Congress's regulatory power under the Commerce Clause, limiting racial preferences, preserving the states' constitutional status, and many more are in jeopardy. Do Republican voters really believe that Trump is the right man for the occasion?
Disclosure: Sen. Cruz wrote the foreword to my book, "Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law." It is, by the way, impossible to imagine Trump writing a similarly erudite essay on President Obama's abuse of executive authority, though it's quite easy to imagine Trump engaging in similar and, indeed, much worse abuses.