Supreme Court

Liberal Pundit Fears Trump Will Make SCOTUS Go Libertarian

What will the Supreme Court look like under a Trump presidency?

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Will the election of Donald Trump result in a libertarian-leaning Supreme Court that imposes constitutional limits on the Trump administration and its big-government agenda? Most sensible observers would say that the answer to that question is a clear no. But Ed Kilgore of New York magazine is not to be deterred by anybody talking sense. In Kilgore's bizarre view, liberals should fear a Trump presidency precisely because Trump is likely to stack the Supreme Court with libertarian justices. Why would Trump do this? "To buy favor with those on the right who fear the Donald's tyrannical tendencies."

Kilgore's argument only goes downhill from there. "Precisely because Trump is a loose cannon," Kilgore insists, "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." Kilgore also raises the specter of a Trumpian Court resurrecting "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." (The case Kilgore is referring to is actually called Lochner v. New York. To understand what Lochner was really all about, start here.)

What's wrong with Kilgore's argument? How about everything. Donald Trump is a constitutional illiterate who thinks that the government should have the unfettered power to suppress speech, censor the internet, shutter houses of worship, discriminate on the basis of religion, steal private property, and punish private businesses for engaging in global capitalism. The idea that Trump—of all people—would end up transforming the Supreme Court into a hotbed of limited government, pro-Lochner libertarian legal advocacy is just plain dumb.

For a more intelligent take on the possible future of the Supreme Court under a Trump presidency, I recommend a recent item by Shoshana Weissmann in The Weekly Standard, in which she correctly observes, "The Supreme Court's duty is to overturn unconstitutional acts, including those of the president. President Trump would not likely nominate justices who would constrain his power to its constitutionally limited bounds."

Weissmann also shares this comment from George Washington University law professor Orin Kerr, who hits the nail right on the head: "If Trump has a choice between an originalist conservative with sterling credentials who would often block Trump, and a buddy of his who hasn't read the Constitution but would let Trump do what he wants, who do you think Trump would pick?"

NEXT: Donald Trump Says London's Muslim Mayor Could Visit U.S. as "Exception" to Muslim Ban

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  1. “The Supreme Court’s duty is to overturn unconstitutional acts, including those of the president…”

    That’s so quaint. The job of the Supreme Court is show deference to both of the other branches by justifying unconstitutional acts of both Congress and the Executive. Checks and balances prevent government from getting things done. That’s what the Founders didn’t understand. We need government to get things done. These limits on government prevent it from getting things done. Luckily the Supreme Court recognizes their duty to ignore limits on government, so now government can get things done.

    1. So, getting things done you say.

    2. Sarcasmic channels Justice Roberts.

    3. I don’t think it’s a stretch to suspect that “getting things done” means only those things you agree with and that you’d be perfectly happy with the government not getting things done you don’t agree with.

    4. The supreme ct.’s job is to resolve cases in controversy. Because they hear appeals, sometimes that may involve overturning unconstitutional acts, but you shouldn’t get the idea that’s what the job’s about.

  2. I get the sense that libertarians are going to be used a proxies for Trump during this elections. Trump is too strong for the progs to stop, but they are perfectly happy to do damage to us in the interim.

    1. Trump is a monster and a totalitarian, which is, like, totally the same thing as libertarian! Freedom is bondage!

      1. Restraining government action is exactly the same thing as using force!

        1. Well, duh! You’re forcing the government to not do all the benevolent awesome stuff it has to do. Force!

        2. Only corporations use force. They force you to work for them by offering you a choice of a job with pay or starvation. They force you to buy products for them by offering you a choice of buying food from them or starving.

          Government, on the other hand, cannot use force by definition. Government is us and we cannot force ourselves to do anything. Force only comes from outside and those in the position of power. Corporations are not us and hold more power than us ? the government ? and therefore when corporations do things, it is a use of force.

          /prog

      2. You laugh, Shippy, you laugh. There are actually people who think that – last week I reposted some facederp from this clueless housewife who referred to Trump as both a libertarian and a fascist in the same sentence. None of the progs saw fit to correct her.

        You owe me an orphan to cuff.

        1. Well, yeah. Libertarians are even farther to the right than conservatives. That means their fascist. Everyone knows this.

          1. It’s just one big circle.

            1. That’s exactly what I think too. I dunno why it isn’t more generally used as a descriptor of how people’s political views vary. it’s not like a circle is actually any harder to visualize than a straight line.

          2. Their fascist what?

          3. “Libertarians are even farther to the right than conservatives. That means their fascist.”

            But Libertarians are even farther to the left than liberals. Now my brain hurts.

        2. Liberals have successfully redefined “fascist” as the opposite of what Fascists in the 1920s to 1940s believed.

          Fascists of the 1920s to 1940s would have referred to what liberals called “fascism” now as? “liberalism”.

      3. You guys are joking, but this is what diehard progressives and Marxists believe basically. Individual agency and freedom are basically unicorns.

        1. Not believing in agency and freedom isn’t just for diehard Progs and Marxists anymore.

          1. Just because we’re told to call zebras mules doesn’t make them mules.

    2. Trump is too strong for the progs to stop, but they are perfectly happy to do damage to us in the interim.

      Where have you been? The only thing worse than bad government is too little government.

      1. I’ve been living in a delusional universe populated by voters who at least occasionally act in a rational fashion. It was very nice there.

    3. A libertarian SCOTUS is as bad as Adam Lanza!

  3. You know that libertarian is defined by progressives as being to the extreme right of conservative. (As opposed to being Republicans who like to smoke pot, which we all know is the correct definition.) A libertarian anything is their worst Koch nightmare.

    1. But what happens when the Kochs decide to back Hillary?

      If I was Chuck Koch I would back Hillary just for the laughs. Talk about suppressing the Bernie vote.

      1. NO TROLLING THE ELECTORATE.

      2. According to the Facebook Bern ward, the Kochs making (sort of) nice with Hillary is proof that Herself is a Republican and for this reason alone is evil.

  4. I can’t wait to see John’s response to this article. Is he going to be glad that Trump would never nominate a libertarian, or is he going to argue that Trump would nominate a truly great justice who would adhere to the constitution.

    You never know with John boy. Could depend on which side of the cot he woke up on.

    1. He sleeps on a sprung cot beneath a single thin, scratchy wool blanket, summer and winter.

  5. Donald Trump is a constitutional illiterate

    If only he’d gone to Harvard Law and taught Constitutional Law at U Of C. Then he could be more constitutional-y.

    I read the question about a ‘sterling conservative’ as ‘Would he choose and obnoxious ideologue or a crony?’ Which, either way, isn’t really any better or worse than the collection of ideologues we’ve got and, honestly, once Trump is out of the Office, WTF is a crony justice gonna do for someone who’s political ambitions began in 2015 and will likely (hopefully) be done by 2020?

    1. A number of Reason’s writers made the argument in 2008 about Obama.

      1. And a moment libertarianism did then ensue, did it not?

        1. The libertarian moment took my virginity.

    2. Began in 2015? That’s certainly not Trump. He’s been toying with the idea of running for something since the late 80’s, and seriously investigated taking over the Reform party before rightly deciding that a third party run is a sucker’s bet.

      The idea that Trump is some sort of vanguard for outsiders sick and tired of the system is one of the worst delusions out there. He wants to sit on the throne, not break the wheel.

      1. +1 Daenerys Targaryen

  6. Elect Trump! Watch the media throw the mother of all tantrums! At least it’s something!

    1. Vote Trump!

      Hope for Change!

  7. What kind of libertarian? The real, run of the mill slightly left or slightly right sort, or the kind that is responsible for every malady the world has ever known, even if they are in conflict with each other? I saw, on the same day, that libertarians were responsible for run drug use and abuse, and the war on drugs. It’s a place holder boogeyman for the intellectual right and left, and the populist right and left. Nobody takes the time to actually read and comprehend, and so it’s just a void to place in whatever pisses someone off.

    1. Needs a bit of editing, but you raise some really good points, particularly the last two sentences.

  8. So the takeaway is: After a Clinton term or a Trump term, the Supreme Court will likely be more deferential to statist authoritarians.

    For me, while not entirely convincing, the strongest argument for voting R this cycle was to keep the Ds from further damaging the Supreme Court.

    Seems it won’t make much of a difference.

    1. Ralph, it’s just a question of which rights you will sacrifice. Looks like gun rights lose either way.

      1. To me, the 1st and 4th Amendment rights are the most important (I understand if people feel differently; I know the 2nd Amendment is strong on these comment boards). None of the judges are consistent on the 1st Amendment and only one is consistently good on the 4th Amendment.

        I do not see either Hillary or Donald nominating people who will turn the tide.

      2. Trump is pro-2A, so I doubt gun rights would lose much under his watch.

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  10. The media used to call Lyndon LaRouche a libertarian back in the day, even though he considered himself a Democrat and ran as one!

    My friends would wrongly point out that LaRouche was libertarian and I would correct them and they then would reference the local newspapers which would repeat the claim that he was libertarian.

    1. After seeing the media confuse semi-automatic with automatic (and assault weapon with assault rifle) and call a Pitot tube a machine gun, I have very little faith in the media accurately defining terms.

  11. A Trump presidency may make certain justices less deferential to the democratic branches.

  12. From the pundits lips to God’s ears…. Because if he made a Kennedy or Robertsesque mistake, where his candidate ends up being a voice of honest to god libertarian values, this country would be so much better off.

  13. Most sensible observers would say that the answer to that question is a clear no “anybody’s fucking guess – i mean who the hell knows? Christ I need a drink”

    1. “anybody’s fucking guess – i mean who the hell knows? Christ I need a drink”

      That covers a surprisingly wide range of situations.

      1. almost every time someone thinks that’s not the right answer, they’re wrong.

    2. They have sensibly observed the future

  14. What’s wrong with Kilgore’s argument?

    Everything?

    How about everything.

    Nailed it.

    Also, it will never cease to amaze me how “libertarian” gets attached to everything that can remotely be perceived as “right-wing”. I wish that proggies will someday learn what words mean. But I won’t hold my breath.

    1. All progtards know is that libertarians often disagree with them, which makes them “right wing.” Remember, we’re talking about people with the intellect of 2 year olds.

      1. That’s harsh. I’m sure they reach 4-year-old levels.

  15. In Kilgore’s bizarre view, liberals should fear a Trump presidency precisely because Trump is likely to stack the Supreme Court with libertarian justices.

    So, do presidents just appoint whoever they want to the Supreme Court? No checks and balances at all? ‘Cause I could’ve sworn the Senate had to confirm the president’s SCOTUS nominations.

    Sounds like Kilgore here should go home and binge watch some School House Rock or something. Assuming that’s not too advanced for him.

    1. ‘Cause I could’ve sworn the Senate had to confirm the president’s SCOTUS nominations.

      But that would just be obstruction! He/She who wins has a right to appoint who they want! //sarc

  16. I never understood the lefts fear of Donald since he espouse many of their ideas or the rights support of him for those same positions, maybe there is no more center right. so the lefts only complaint is that he is of a different party.

    1. The Left’s fear of him is rooted in his overt populist pandering to nationalists/jingoists (though the Left has their own populist hero at the moment that says many of the same things Trump says). It is irrelevant that he seems to (sometimes maybe) take positions borrowed from the Left; nationalism is a much more dangerous.

  17. The believe that Trump will nominate anybody remotely “libertarian” is ridiculous. This is a man who praises the Court’s opinion in Kelo. Trump has also taken definitely-not-libertarian positions on countless issues at one point or another; it is highly doubtful he will nominate anybody who will overrule his executive whims.

    He will undoubtedly nominate people for judgeships who are generally like most people presidents nominate: deferential to all but the most blatant unconstitutional acts of the executive. But possibly more so.

    1. So is Trump a con man who doesn’t believe anything he says or is he a crazed totalitarian? He can’t be both. I don’t think Trump has an ideology and would appoint whatever justice he thought would buy him the most political capital. That doesn’t mean he would appoint a libertarian justice. Hell he might appoint a huge liberal. Who knows. But it doesn’t mean he won’t either.

      If the Republicans in Congress make it worth his while to appoint a conservative or libertarian justice, that is what he will do. Good or bad, that is likely the way it would work out.

      1. So is Trump a con man who doesn’t believe anything he says or is he a crazed totalitarian? He can’t be both.

        Sure he can: he’s a crazed totalitarian who is only saying the things he says because he believes that doing so will further his cause. I don’t know why you think these two qualities are mutually exclusive. they’ve essentially been required to hold high office since at least 1900.

        If the Republicans in Congress make it worth his while to appoint a conservative or libertarian justice, that is what he will do. Good or bad, that is likely the way it would work out.

        Yeah, I think this is exactly what would happen. I do think that he will be more apprehensive than most about appointing someone that is a risk for curbing his power. Basically I’d expect nominees from the Roberts school of jurisprudence (Go Go Imperial Presidency!).

        1. “Crazed totalitarian” is hyperbole. Nobody knows what Trump might do at this point w/ respect to the USSC. In a few months it’ll become clearer.

          1. We can guess that he won’t appoint anyone remotely libertarian.

      2. So he’s Clinton (Hill or Bill) with an orange wig you say?

  18. Donald Trump is a constitutional illiterate who thinks that the government should have the unfettered power to suppress speech, censor the internet, shutter houses of worship, discriminate on the basis of religion, steal private property, and punish private businesses for engaging in global capitalism.

    Not a single word of that sentence is true. And the linked article is complete nonsense. This is not to say that Trump is a libertarian. He is not. But you can not be a libertarian without being those things. Trump has never claimed the government has “unfettered power to suppress speech” and anyone who thinks that is either lying or a complete moron. And he says that the government should close Mosques that support terrorism. So does DOJ and the courts. It is a crime to support terrorism.

    There is an easy case to be made against Trump. And a hundred good reasons why Libertarians should not like him or support him. Why reason have such a hard time making that case and instead resorts to histrionic bullshit?

    1. The man wanted to shut down certain parts of the Internet.

  19. It seems simple to me:

    Hillary (like any Democrat) will appoint justices who twist the Constitution in a left-wing direction.

    Trump (like any Republican) might not appoint justices who twist the Constitution in a left-wing direction.

    1. I think Trump will rely on recommendations from the Senate, which may be a good thing or not. Has he ever given the impression that he really cares that much about the SCOTUS?

      1. I don’t think he’s breathed a word about it outside parrying blows from Cruz during the SCOTUS-frenzy immediately after Scalia’s death.

  20. Convince me he’ll conservativize the Supreme Court, and I’ll vote Trump.

    But it will take a lot of convincing – his pro-abort sister is a federal judge and he suggested she’d be a great Supreme Court justice.

    1. It isn’t enough to convince you that Hillary will certainly do the opposite? Trump is a gamble, sure, but a gamble is always better than a certain loss.

      1. I know, Two-Face is better than the Joker.

        Of course, suppose there’s a Republican Congress and Trump nominates a pro-abort liberal. The Republicans will probably find an excuse to confirm the nominee.

        If Hillary nominates the same pro-abort liberal, a Republican Congress might reject that person.

        So there’s that.

        1. Hillary can nominate whoever she wants if she wins, and the GOP will be compelled to confirm them. They won’t have the political capital to stonewall anything.

        2. Two-Face is better than the Joker.

          That’s a great metaphor for this election. With Two-Face (like Trump) you have a 50-50 chance.
          But I think Hillary is more like the Scarecrow than the Joker. She doesn’t mean to destroy everything, but she is your worst nightmare.

          1. With Hillary, we’re doomed. With Trump, we might not be doomed.

    2. Trump has praised Alito, Thomas, and Scalia. Called Clarence Thomas his favorite Justice.

      (I’ll take Clarence Thomas clones til the cows come home.)

      An article at “Think Progress” is terrified of the “ultra-conservative” Justices Trump would might nominate.
      Meet The Two Ultra-Conservatives Trump Would Nominate To The Supreme Court

      Works for me.

      I really hope Janice Rogers Brown makes the list.

      Compare to what you’d expect out of Hillary.

      1. did Obama teach you nothing? These are just words.

      2. Trump isn’t going to nominate any “Clarence Thomases”. He will probably go for guys who have pro-law enforcement, pro-corporate records, and have lots of skeletons in the closet that Trump can hold over them.

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  25. Trump is a libertarian’s worst nightmare (along with Clinton). In the primaries, he missed no opportunity to back the cops, even when their actions were highly questionable.

  26. Not exactly a liberal pundit but I saw this good one from *cough cough*Infowars*cough cough* who mentionned then Jennifer Rubin of the Washington Post posted this tweet. I had to share a laugh for a moment. 😉

  27. Orin Kerr, a law prof, actually wrote this phrase:

    “who do you think Trump would pick?”

    GW Law students should demand their money back.

  28. The idea that Trump?of all people?would end up transforming the Supreme Court into a hotbed of limited government, pro-Lochner libertarian legal advocacy is just plain dumb.

    It would certainly be a supreme irony if that were to happen, but I guess you never can tell. Trump is a constitutional illiterate, yes – but he probably doesn’t know it. He could appoint what he was told were “conservative” justices, without really understanding what that meant. It’s not something I would in any way count on happening, but the possibility can’t be totally ruled out, either.

    1. Trump has exceptionally good instincts with regard to sizing people up. He will know right away if a prospective justice is likely to stand in his way or a man who is easily intimidated into submission. He will always choose Justices who will bend to his will, and I’m sure he won’t make any mistakes in this department.

  29. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarchy. We just need strong statesmen as governors and legislatures to make that stand!
    In writing to William Jarvis, Jefferson said, “You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”
    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.”
    http://freedomoutpost.com/2015…..s-growing/

  30. If I thought he’d do it, I’d vote for him. His #1 pick should be Andrew Napolitano.

  31. Interesting interview (albeit InfoWars) with Lew Rockwell on Trump:

    https://www.youtube.com/watch?v=cY1EgMIqbRM

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  35. Trump is going to nominate Justices who will stay the hell out of his way. He will nominate weak men who are easily intimidated. Anyone with a brain already knows this.

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