Originalists against Trump

|The Volokh Conspiracy |


One of the most commonly deployed arguments advanced by people who urge pro-limited government conservatives and libertarians to support Donald Trump is the claim that he will appoint originalist Supreme Court justices. However, many originalists are not convinced either that he will actually do so, or that this is sufficient reason to support him if he will. Today, the "Originalists Against Trump" petition was made public. It is signed by many of the nation's leading originalist legal scholars and commentators. They include Richard Epstein (NYU), Keith Whittington (Princeton), Steve Calabresi (Northwestern, one of the founders of the Federalist Society), and many others. The petition was organized by Will Baude (University of Chicago) and Stephen Sachs (Duke), two of the most prominent younger originalist scholars in the nation.

It is worth noting that the petition includes a wide range of different types of originalists. Both libertarians and conservatives are prominently represented. Epstein, for example, is probably the nation's most famous libertarian legal scholar, while Calabresi and Michael Stokes Paulsen are among the most prominent conservative constitutional theorists.

I have signed the petition myself, as have fellow Volokh Conspiracy bloggers Jonathan Adler and David Post. It is an honor to be in such distinguished company.

The petition makes the important point that appointing judges is just one of several ways in which the president impacts our constitutional values. Regardless of what he might do with respect to judicial appointments, Donald Trump poses a menace to the Constitution on many other fronts.

In several previous posts, I have explained why Trump is likely to cause much more harm than good even on the specific issue of judicial appointments. See here, here, and here. In those posts, I explain both why Trump can't be trusted to appoint originalist Supreme Court justices in the near term, and why—even if he does appoint one or two—his election would severely damage the originalist cause in the long run (a much worse danger than the appointment of one or two hostile justices). A GOP reconfigured in the image of Trumpist big-government nationalism would have little use for constitutional limits on government power—or for the kind of judges likely to impede its agenda by enforcing them. As on many other issues, when it comes to originalism and the Supreme Court, a Hillary Clinton victory would be bad, but a Trump win is likely to be even worse.

Conor Friedersdorf makes some additional relevant points in this very thorough post, published earlier today.

UPDATE: Here's a highly relevant comment by Alan Gura, the originalist lawyer who argued and won District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010)—the two major Supreme Court decisions protecting the Second Amendment right to bear arms:

Donald Trump has effectively identified the horrific prospect of Hillary Clinton appointing at least one and perhaps several Supreme Court justices, to say nothing of the lower courts. But shall we entrust that task to an insecure lunatic, a fascist caudillo, an autarkist, a proud ignoramus and conspiracy theorist, the aspiring leader of a "Workers' Party" who plays footsie with racists and anti-Semites and might well be a Russian agent? I have no illusions about what Hillary would do to the federal bench. Sad! But there is something deeply contradictory about the notion of electing a power-hungry strongman on the theory that he'll appoint judges that respect and enforce constitutional limits on government. Did Hugo Chavez appoint great judges? Did Putin, Mussolini, or Erdogan? Would it have mattered had they sort-of kinda suggested that they would?