Trump, Clinton, and the future of the courts—a reply to John McGinnis [updated with a response to James Taranto]

|The Volokh Conspiracy |

Northwestern law Professor John McGinnis has posted a thoughtful response to my argument that a Donald Trump victory in the election is a greater threat to constitutional originalism than Hillary Clinton would be ((my post had criticized John's earlier post on this subject. John makes some reasonable points. But his analysis ultimately falls short. He modestly overrates the dangers of a Clinton presidency. More importantly, he greatly underestimates the menace of Trump.

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I. The Perils of Clinton.

When it comes to Clinton, I agree with John that she is likely to appoint justices inimical to originalism in important ways, and that they are likely to create some bad precedents. But it is an exaggeration to say that this would "return us to a Court unconstrained by our fundamental law." As noted in my previous post, mainstream liberal jurists are willing to enforce important constitutional rights such as freedom of speech, the rights of criminal defendants, basic antidiscrimination protections, and others. While very few are down the line originalists, many do take original meaning into consideration as one among several relevant factors. Thanks to the rise of originalist ideas in the academy and the legal profession, they have some purchase on the left, as well as the right, with even Justice Kagan famously opining that "we are all originalists"—an exaggeration, but a telling one. By contrast, for reasons spelled out in my earlier post, it is far less clear that Trumpist judges would respect basic constitutional rights and separation of powers principles to the same degree.

If Clinton-appointed justices do create bad precedents on important issues (as is probable), they will likely be highly controversial both within and outside the court. Historical evidence shows that closely divided and highly controversial rulings are vulnerable to reversal or narrowing by future courts. As long as a strong originalist tradition persists within the GOP, these precedents will not be fully settled. By contrast, if that tradition is destroyed or seriously undermined by Trumpism, the long-term damage to originalism will be far more severe.

John may also be excessively pessimistic in thinking that Clinton would get two or even three Supreme Court appointments, if she wins. She will indeed have the opportunity to replace Justice Scalia. But it is far from clear that she will get to fill Ruth Bader Ginsburg's seat. Justice Ginsburg has resisted liberal pressure to resign before (in 2011-12 and again in 2013-14), and she may well prefer to serve for as long as she is physically able. That could turn out to be another four years, or even longer. As for Justice Anthony Kennedy (also mentioned by John), it is unlikely he would allow himself to be replaced by a Democratic president. Those who think that Kennedy is sympathetic to liberal jurisprudence forget his opinions and votes in cases like Citizens United, NFIB v. Sebelius, and the affirmative action cases. These calculations may be changed by illness or death. But, at the moment, it is premature to assume that the next president will get more than one Supreme Court appointment.

II. The Greater Menace of Trump.

My biggest disagreements with John focus on not on Hillary Clinton, but on Trump. I think he greatly underrates the risk created by the fact that Trump has a dangerous constitutional agenda, which is part of a broader effort to turn the GOP into a "workers party" that would be essentially a US version of European right-wing national parties, such as the National Front. Historically, as described in my original post, when parties' basic ideologies change, their jurisprudential commitments eventually change with them.

John hopes that a President Trump would merely be "renting" the party, after which (presumably) it might return to its previous principles. But if the Trumpist platform seems like a political success, it will spawn imitators, and the party will gradually move in its direction. Few politicians are willing to put principle ahead of political considerations, and those who are are less likely to survive in power in the first place. Moreover, as the past year has all too painfully shown, Trump is not completely isolated in the GOP, and there are others in the party's base who share his commitments. If there were not, he could not have become the GOP nominee in the first place. If Trump wins the election and otherwise seems to be politically successful, the Trump/National Front wing of the party will grow, and other factions will weaken.

John has great confidence in the ability and willingness of Republican and Federalist Society elites to stop Trump from appointing judges who would fit his agenda, rather than that of conventional conservatives. I am a great admirer of the Society, of which both John and I are long-time members, and currently serve on an executive committee together. If Trump's nominees had to pass confirmation by the Federalist Society, John's optimism would be justified. But instead, they just have to be confirmed by the US Senate.

And senators rarely oppose presidents of their own party on major issues, including Supreme Court nominations. The Harriet Miers episode in 2005, cited by John, was an unusual exception to this rule, brought on by the fact that Miers seemed both ideologically suspect and lacking in adequate professional credentials. As noted in my original post, such a two-fer is unlikely to recur. Moreover, George W. Bush gave up the fight for Miers in part because Federalist Society types had considerable influence within the administration, not just the Senate. By contrast, such people are unlikely to have similar way in a Trump administration, given its adherence to an ideology at odds with theirs, and given the fact that Trump won the nomination despite the overwhelming hostility of Federalist Society leaders.

John argues that Trump might be inclined to make a deal with conventional Republicans, under which the latter get judicial appointments that they like in exchange for help on other issues. But this theory implicitly assumes that Trump does not care much about the judiciary and is willing to trade it off for other issues. In reality, he has a longstanding (and probably sincerely held) agenda of undermining freedom of speech and property rights, and also wants to weaken many legal constraints on the executive . Given this agenda, it is quite possible that, if Trump does make a deal, it might be one under which he gets what he wants on judicial appointments in exchange for making concessions on other issues. He could also, of course, potentially make deals with Democrats, some of whom might prefer highly deferential Trumpist judges to more conventional GOP nominees.

John suggests that Trump's influence is likely to be greatest on issues where the GOP is internally divided, such as trade. By contrast, he argues that the party is largely united on constitutional issues, and thus will resist Trump in this field. I am less optimistic. However united the party may be on originalism, they are clearly divided over Trump's populist agenda, and also on whether that agenda should take precedence over constitutional considerations when the two conflict. Large numbers of Republicans support Trump's plan to "temporarily" exclude Muslims from the US, for example, despite the fact that this would be constitutionally dubious religious discrimination. If Trump takes over the White House, opinion within the party is likely to move further in his direction.

Even if Trump does make a good Supreme Court appointment or two, that is nowhere near sufficient compensation for the long-term change Trumpism could impose on the GOP, which would result in a jurisprudence hostile to originalism and most constitutional limits on government power. That is far more important than any one or two Supreme appointments are likely to be. If Clinton establishes a narrow liberal majority on the Court, that majority will face strong opposition, and its more dubious decisions will not become widely accepted, uncontestable precedents. Limited-government originalism will still be a going concern. Not so if the GOP becomes the US version of the National Front.

We cannot be certain either that a victorious Trump would make a good Supreme Court appointment or two, or that he will succeed in transforming the GOP into a right-wing nationalist "workers party." But even a modest likelihood of the latter is easily enough to outweigh the potential benefits of the former.

While I think the risks of Trump on constitutional issues greatly outweigh those of a Clinton presidency, I recognize that some people might reasonably conclude that it's virtually impossible to tell what will happen. Predicting the course of any administration is not easy, especially one headed by so unusual a politician as Trump.

If you think that the prospects on judicial appointments are murky, then you should emphasize other issues in comparing the two candidates. And on most of them, the case for Clinton as the lesser evil of the two is quite strong. As John recognizes, " where Republicans are divided or where there is substantial populist sentiment on his side, [Trump] may transform the party toward his policies, many of which are indeed very bad." If still in doubt, limited-government originalists would do well to heed the words of Alexander Hamilton: "If we must have an enemy at the head of government, let it be one whom we can oppose, and for whom we are not responsible."

UPDATE: James Taranto of the Wall Street Journal responds to this post here. His main argument is that my analysis somehow fails to look beyond the 2020 election, and implicitly assumes that the Republicans will win the presidency that year. To the contrary, the whole point of both this post and my earlier one on the same subject is that it is important to take a long-term perspective. If Trump wins this year and gets reelected in 2020, that makes it all the more likely that he can transform the GOP—and its jurisprudential philosophy—in a statist/National Front direction. It is true, as Taranto notes, that if Hillary Clinton wins this year, she might be reelected in 2020, and appoint still more liberal, nonoriginalist judges. But, for reasons mentioned above, it is far from clear that those judges will be worse than whoever Trump might appoint. Even more importantly, if Trump wins in 2016, then it is highly likely that both major-party candidates in 2020 will be hostile to limited-government originalism and constitutional restrictions on government power. By contrast, if Trump loses this year, there is at least a substantial likelihood that the GOP will field a less objectionable candidate in 2020, and that that person will have good prospects in the general election. It is not easy for any party to win four presidential elections in a row, and Hillary Clinton is far from the most formidable of candidates.