Supreme Court

Neither Trump Nor Clinton Understands What the Supreme Court Is Supposed to Do

Both candidates promise appointees who share their policy views.

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C-SPAN

The next president will appoint at least one and perhaps as many as three Supreme Court justices, who in turn will have a decisive impact on the Court's jurisprudence for decades. But last night's presidential debate revealed that neither of the major-party candidates understands what Supreme Court justices are supposed to do.

Moderator Chris Wallace started the discussion off on the wrong foot by asking the candidates where they "want to see the Court take the country," implying that justices are legislators in black robes, pursuing a policy agenda instead of deciding the controversies that come before them. Both candidates seemed to agree with that premise.

Donald Trump promised that "the justices that I'm going to appoint will be pro-life" and will therefore vote to overturn Roe v. Wade, the 1973 ruling that discovered a right to abortion in the 14th Amendment's Due Process Clause. There are good reasons to think Roe v. Wade was wrongly decided, or at least that its constitutional rationale left much to be desired. But a justice's personal views on abortion are logically and legally distinct from the issue of Roe's soundness. A conscientious justice strives to separate his policy preferences from the question of what the Constitution allows or requires.

Even if you think abortion should be banned, it does not necessarily follow that the Constitution allows states to ban it. And even if you think abortion should be legal, it does not necessarily follow that the Constitution prohibits states from banning it. A justice who ignores these distinctions is writing law instead of applying it.

Hillary Clinton also promised to appoint justices who will help her achieve the policies she favors, which include speech restrictions that protect politicians like her from criticism close to an election. Clinton said her Supreme Court picks "will stand up and say no to Citizens United, a decision that has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system."

Clinton neglected to mention, as she always does when discussing Citizens United v. Federal Election Commission, that the case involved a movie that made her look bad. The Court concluded that a conservative group organized as a nonprofit corporation had a First Amendment right to present Hillary: The Movie on pay-per-view TV while Clinton was seeking the Democratic presidential nomination in 2008. Presumably Clinton disagrees. But instead of explaining why, she says the decision should be overturned because "it permits dark, unaccountable money to come into our electoral system." Clinton worries that these dastardly dollars are "drowning out the voices of ordinary Americans and distorting our democracy." But that is not a constitutional argument. Even if Clinton were right about the baleful impact of Citizens United, it would not follow that the First Amendment permits the sort of self-serving censorship she favors.

In addition to promising Supreme Court justices who agree with her that suppressing Hillary: The Movie was consistent with freedom of speech, Clinton said her picks would "stand on the side of the American people, not on the side of the powerful corporations and the wealthy." That sounds like she thinks the Court should be biased against big businesses and rich people, a position that cannot be reconciled with the constitution or the statutes that the justices are charged with interpreting and applying. The law is supposed to provide equal protection to all Americans, regardless of their income or wealth.

Clinton is also wrong when she says "the Supreme Court should represent all of us." That is what a democratically elected legislature is supposed to do. A court is supposed to apply the law, a function that does not cater to constituencies or dole out favors based on political considerations.

In light of that role, Chris Wallace's other question about the Supreme Court was more apposite: "What's your view on how the Constitution should be interpreted? Do the founders' words mean what they say, or is it a living document to be applied flexibly according to changing circumstances?"

Clinton did not even attempt an answer, while Trump at least tried to mouth the words that somebody told him conservatives expect to hear from a Republican presidential nominee:

The justices that I am going to appoint…will interpret the Constitution the way the founders wanted it interpreted….I don't think we should have justices appointed that decide what they want to hear. It's all about the Constitution…the way it was meant to be.

It's not completely clear how that would work in practice, since we can't actually read the Framers' minds. But Trump's description seems consistent with interpreting constitutional provisions based on the original public understanding of them, the approach favored by Justice Clarence Thomas. An originalist approach rejects the idea that the Constitution is "a living document" in the sense that its meaning changes over time—so that, for example, the 14th Amendment's guarantee of due process can stop states from banning abortion, even if that is not the way the provision was understood when it was approved.

While the latter approach can produce liberty-friendly results, it does so at the cost of loosening the Constitution's constraints on goverment power, a tendency that is decidedly unfriendly to liberty. Hence it would be encouraging to hear a major-party candidate endorse originalism—if we had any reason to think he understood its value or would make decisions based on that understanding. It's hard to believe that's true of Trump, who thinks the Constitution has 12 articles, empowers judges to sign bills, authorizes presidents to rewrite libel law, and allows the government to take away the citizenship of people born in the United States. Trump claims he has read the Constitution, but if so he did not retain much.

Meanwhile, in areas such as freedom of speech, gun control, surveillance, executive power, and federal authority, Clinton takes positions that are plainly inconsistent with the Constitution. That means voters who assume they have to choose between the two major parties will be choosing between a candidate who doesn't know what the Constitution says and a candidate who doesn't care.

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  1. Why should the Nazgul should be in charge of the country?

    1. They shouldn’t be, they just are. Appointing your justices to SCOTUS basically allows you to amend the constitution to your liking without having to actually go through the amendment process.

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    2. Why should anyone? This is part of the larger problem of people thinking that the government is there to “be in charge of the country” at all.

    3. All I know is that they should be involved in taking care of things like vote fraud and the inciting of violence used to suppress free speech–something they could find out about if only Reason would finally address the Project Veritas videos.

      1. Yes, the supreme court gets all their news from Reason.com. They are all that’s preventing the court from addressing these issues.

        It’s amazing that anyone knows about the videos, since apparently it’s impossible to look at breitbart.com.

  2. implying that justices are legislators in black robes, pursuing a policy agenda instead of deciding the controversies that come before them. Both candidates seemed to agree with that premise.

    Regardless of what the constitution says, this is basically the way it works now. They have been legislating from the bench for a while now.

  3. Damn lack of edit buttons. “Why should the Nazgul be in charge of the country?” Nine Black robed people none of us voted for get to say what the law is.

  4. This has been my stalking horse for a couple of decades.

    And I’ve felt very alone in tilting at this windmill. I can’t even get attorneys to agree that Judges should interpret the law, not press for the “correct” policy outcome.

    A litmus test for this is your interpretation of the bill of rights.

    1st amendment – “shall make no law” has no exceptions. Not for obscenity. Not for anything. So if you think there are limits to free speech of any sort that are acceptable under the constitution, you are not competent to be a judge.

    2nd amendment – “shall not be abridged”. No “unless it is a reasonable restriction” qualifier. So if you think there is a way to get to “only small arms” from “Shall not be abridged”, you shouldn’t be a judge.

    Any moron who can read should be able to see that the constitution needs to be severely amended if people want to implement the policies that we have implemented at the federal level. The fact that we don’t have a single justice on the court who would agree lets you know how far we have strayed from the concept of a constitutional republic under the rule of law, not men.

    1. ^This about a million fucking times.

      1. A million times a million!!

        1. Especially if it was corrected to “infringed.”

          Not trying to be a snob. I just love the words.

    2. What attorneys are you talking to? Sounds like city lawyers, lol. I’ve never heard much arguing for policy outcomes, and the duty to zealously represent your client keeps things pretty controversy focused. Then again, I’m sure Common Pleas Courts in 25k pop. counties are more people focused than the places with much larger jurisdictions (population wise).

      That said, most of my Administrative Law classmates looked at me like I was from Mars when I argued that the whole thing was extra(read: un)-constitutional.

      The big culture divide(and resulting different attitudes about the law) looks urban/rural to me, and there’s an awful lot of folks living in cities far too large for human brains to process.

      1. Once you have worked in the legal profession for a while, you become inculcated with the language and culture of the profession. You think differently than normal people. The law is extremely complex and “right and wrong” doesn’t enter into it. There is law, precedent, procedure, etc.

        I’m not really talking about discussions of “representing your client”. When I have tried to talk constitutional law ideas with corporate attorneys or patent lawyers or real estate attorneys they all know “the law” as relates to “law school” and also as relates to “what works in court”. Talking about “the black and white letters on the page” is as nonsensical as talking about the health benefits of unicorn milk. Once the courts decide that “shall make no law” allows for the banning of obscenity, that’s the end of that.

        For idiots like me, “no law” remains “no law” until an amendment is passed. No court decision could ever supersede that. But thinking this way would make for a pretty crappy attorney, I suppose. To be able to represent a client, you need to know how the courts are going to decide an issue, not why the court would be wrong about that decision. “Sorry you are in jail on that illegal weapons charge for having a machine gun. The court is wrong about their interpretation of the law, if that makes you feel any better.”

        1. Actually what they’ve ruled on is not “make no law”, but “freedom of speech or of the press”. They decided that such “freedom” was never legally understood to include obscenity, so that a Congressional law banning obscenity (thru the mail, for instance) does not infringe “freedom…of the press”.

          1. Ah. never “legally understood”. The problem is that these cretins rarely pay attention to what the Constitution actually says, because if they did, they’d realize obscenity (a completely subjective matter) is never mentioned.

        2. As a corporate tax attorney, I mostly agree with you. I remember when we read the cases where the court flipped and started upholding the New Deal under a perverted and, quite frankly, insane interpretation of the Commerce Clause. I was shocked that none of my classmates seemed to be bothered by this. There were a few of us that actually cared what the words of the Constitution said and considered a lot of Constitutional law jurisprudence as illegitimate, but we were greatly outnumbered.

          I think studying and becoming passionate about classical liberalism as a philosophy major in undergrad helped me appreciate what the Constitution, as written, was actually trying to accomplish. I also tend to agree with Richard Epstein that being an attorney who does not practice constitutional law is advantageous when actually trying to understand the Constitution. Therefore, there are at least a few of us attorneys out there who feel the words of the Constitution actually mean something and that the area of constitutional law has gone off the deep end.

    3. Muh crowded theater…

      1. Muh extra wheat….

    4. WRT the Second,it’s “shall not be INFRINGED”. And there’s nothing in there about “reasonable restrictions”.

      Even so,”reasonable” would (and SHOULD) mean that there has to be actual facts and evidence supporting the need to make a restriction on such a BASIC “core concept” right such as the RKBA,and that any law enacted has to achieve it’s intended (stated) goals without undue infringement on the RKBA,and within a reasonable amount of time,or it’s null and void. IOW,if a law isn’t achieving any results,or negligible results in 5 years,it’s not working and needs to be scrapped.
      Lawmakers cannot just make a claim that’s unsupported …or contradicted… by the facts and evidence,and expect the Court and the Citizenry to take their word for it. That MUST change.

  5. What difference does it make when the justices on the court don’t understand what they are supposed to do?

    1. Oh, they understand perfectly well. They are there to make sure that justice is served. They are the final check on policy.

      This is why the questions at oral arguments are always about policy implications. “What would be the effect if we were to…. ?”

      If everyone involved didn’t believe that the Supreme Court was there to be the Solomon-like dispensary of Truth, this line of questioning would be castigated and discarded immediately each time it was brought forth. Instead, it is treated by all as the only truly correct line of reasoning.

      When considering a law, the first question the court should ask is “where exactly in the language of the constitution does the government get the power to take this action”. If answering that question requires resorting to precedent (that also only relies upon precedent), then you have your answer. If it requires torturing the meaning of the language in the constitution (interstate commerce allows the regulation of non-commerce in non-interstate markets), then you have your answer.

      They don’t do this at all. If you listen to their arguments, or read their opinions, it is clear that they start with the outcome that they believe to be true and just and right and then they work backwards to get a rational from the law.

      Their job would be much easier if they followed the constitution, because the answer to the first question (does the government have this power) would almost invariably be “no”.

  6. “”””Neither Trump Nor Clinton Understand What the Supreme Court is Suppose to do”””””

    Wear funny clothes and think that their personnel opinions should be law?

    1. Be it resolved: Karen in accounting must go!

  7. “That means voters who assume they have to choose between the two major parties will be choosing between a candidate who doesn’t know what the Constitution says and a candidate who doesn’t care has repeatedly promised to defy it.

    1. Yet Reason declares them both equally horrible. At least Trump gives lip service to the founding fathers.

      1. Well, declares them both horrible, anyway.

      2. Actually this article seemed to be more against Hillary than Don-Don, but you can feed your persecution complex if you want.

      3. Actually this article seemed to be more against Hillary than Don-Don, but you can feed your persecution complex if you want.

        1. Glory be unto the Squirrels, may they reign in eternity.

  8. Jacob, this is the best piece that has appeared on Reason recently.

    1. Praising with faint damns?

  9. “The next president will appoint at least one and perhaps as many as three Supreme Court justices”

    Not to be a pedant but there is no upper limit to the number of Supreme Court justices the next president may perhaps appoint.

    1. I’m not so sure. After thirty or forty of them have died, you might not find many people putting themselves forward for the job.

  10. Huh, a balanced article.

  11. In the common usage of the term, prolife certainly entails that one supporters the overturn of Roe v Wade.

    That “personally prolife” stuff is just cooked up disingenuous BS.

    1. Pro-Life is a policy goal: End legal abortion.

      That means you might want RvW overturned with no deference to the legal arguments for/against. It’s not a statement about the legal basis of RvW, just a desire for an end state that requires it to be overturned.

      Hell you could get around RvW by passing a constitutional amendment that would specifically permit individual states (or the fed) to ban abortion if you held that RvW was decided on good legal grounds, but don’t like the outcome.

      1. You could get around Roe vs Wade by simply reading the constitution. There is nothing in the constitution that defends abortion therefor it’s a state’s rights issue regardless if you are pro-life or pro-choice. The whole basis for Roe vs Wade stems from the right to privacy which is a bit of a stretch.

        1. Except the first bit of your assumption is backward.

          There is nothing in the constitution that allows the government to regulate abortion. Therefore it is reserved to the states or the individual.

          Of course, this makes one huge unstated assumption. That life begins at the moment of birth, or some time close to that.

          Because if a 3 month old fetus is a human being with all the rights of a human, then the feds do have the right to pass laws protecting it.

          And that’s why abortion is a non-arguable issue. The unstated assumption that underlies all arguments is entirely based on “when life begins”, which is an unanswerable question.

          1. Well, yeah, but until very recently there’s been no attempt at federal laws to regulate abortion. Roe was all about the states.

          2. Please cite the Section of the Constitution, where it grants the power of the feds to “protect” any life, no matter where it is determined to begin.
            Remember, there isn’t even a federal law against murder, unless they can stretch it to depriving someone of their civil rights – another non-granted power.
            The states was where laws were supposed to be made, thus the requirement that any crime committed must be tried in the state in which it occurred – Article 3, Section 2.

        2. Roe was based on Griswold, and the right to privacy in Griswold is such a stretch it’s hilarious. In essence they said that if it weren’t for procreation there’d be no human beings, therefore no Constitution, so procreation is a law superior to the Constitution. Since people make babies in private, they have to be allowed the means in private to control baby-making. And since baby-making involves sexual intercourse, anything that’s sufficiently similar to parenting-style sexual intercourse (such as same-sex couplings) is also a kind of privacy that the Constitution must defer to.

          By that handy means, they managed to carve out a really narrow privacy right that they can say doesn’t apply to sexual activity for $, nor to putting other stuff into your body, nor to taking other stuff out of your body.

      2. There is such an amendment. The last, and probably the most important one, in the Bill of Rights – the Tenth.
        It says that anything the Constitution doesn’t grant power to the feds to do or prohibits the states from doing is to be decided by the states.
        It is, also, the most ignored of the Amendments.

  12. if a 3 month old fetus is a human being with all the rights of a human, then the feds do have the right to pass laws protecting it.

    I guess they could make some laws, but it seems like it would still be a state matter in most cases. Or is there a case to be made that the federal government can have general police powers, or compel states to make certain things illegal if they specifically pertain to protecting life?

    “when life begins”, which is an unanswerable question.

    Life is a continuous process that began 3 or 4 billion years ago. Probably.

    1. Life in this context means “an individual human life” as opposed to any other human or a non-human life form. “Life” as a legal definition of “human being”.

      It is not an easy question, despite seemingly being obvious.

      It doesn’t just apply to unborn fetuses. There’s brain death. There’s anencephalic infants. And then you can get really weird if we posit human-animal hybrids or recombinant animals with human-like cognition or sentient computers….

      Something that sounds intuitively obvious can get really complex, really quick.

      1. Yeah, I just say that last thing to amuse myself. People should say “individual human life” more.

        I like to think that “human being” should be the thing we worry about, not “life”. And I also think that what makes one human is the mind, not the genetics. There is still plenty to argue about there, but I at least have no ethical dilemma about early term abortions.

  13. “While the latter approach can produce liberty-friendly results, it does so at the cost of loosening the Constitution’s constraints on goverment power, a tendency that is decidedly unfriendly to liberty. ”

    No! The Ninth and Tenth Amendments make it clear that the Constitution does not limit our rights but does limit government power.

    1. Which is a quaint notion that was pretty much discarded the moment the ink on the constitution was dry.

      In the world we live in today, the power and reach of the government is only limited by the whims of politics and what the anointed 9 (well, 8 for the moment) believe is right and true and just policy.

      Any honest reading of the 9th and 10th would render the Feds severely hamstrung in their authority. They’d be a tiny fraction of their current size, with an army and a customs service / border patrol being the overwhelming majority of the federal government.

      1. Not even an army. The Founders didn’t want a standing one.
        Thus, from, Article 1, Section 8, Powers of Congress: “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;”
        Maybe that could stand some revision, but, Constitutionally, it hasn’t had any.

  14. Hmmm… but judges have always exerted some measure of their own activism on American jurisprudence. In general, the more vocally activist/extreme ones don’t get through the vetting process. This article seems to deny this reality. What is new is (perhaps) the brazenness with which both candidates announce, quite plainly, that they intend to appoint judges specifically to target certain issues with the hope that their influence will do away with an existing precedent. But this doesn’t mean this hasn’t always been part of the calculus; of course it has.

    On a somewhat tangential note, Reason sort of betrays its name by its insinuation: “Clinton neglected to mention, as she always does when discussing Citizens United v. Federal Election Commission, that the case involved a movie that made her look bad.” This implies fairly directly that her motivation to overturn CU is purely personal, when it is clearly not.

    The author also seems to contradict himself by congratulating Trump on his pseudo-“originalist” approach, even as the author admits that we “can’t actually read the Framers’ minds,” and then AGAIN contradicts himself by indicting Clinton by saying that she “takes positions that are plainly inconsistent with the Constitution,” an assertion that essentially requires one to be able to read the Framers’ minds.

    It is an interesting piece; it manages to be explicitly anti-Hillary without being implicitly pro-Trump. But it does fall short on “reason,” occasionally.

    1. Sorry, I meant to say “explicitly [pro-Trump]” the second time, not “implicitly.” No edit feature? Dang…

    2. “…when it is clearly not.”
      Now, who’s reading people’s minds?
      The ruling stems from her insisting a law be applied to the non-profit, Citizens United, for wanting to air a move that was critical of her. The SC declared that law unconstitutional.
      Maybe HiLIARy has other, altruistic reasons for wanting it restored, but the underlying issue was her desire to suppress information damaging to her. (Never thought I could get altruistic and HiLIARy’s name into the same sentence without my computrifier exploding, here’s hoping…)

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  17. Ellie . true that Susan `s blurb is good… I just purchased a gorgeous Fiat Panda sincee geting a check for $8891 this-last/4 weeks and also ten grand last-month . this is actually the most financialy rewarding Ive had . I started this 9-months ago and right away was bringin in at least $87, per-hour .

    see……………. http://www.BuzzNews10.com

  18. The headline begs the question as to what the SCOTUS is “supposed” to do, i.e. it just takes it as a given that the originalist approach is the correct one. This country has done quite well for centuries taking a more pragmatic, common law, precedent-based approach. That being said, it is indeed somewhat inappropriate to choose justices based on their views on specific policy issues.

  19. the Supreme Court is supposed to insure that laws enacted by Congress or the States comply with the Constitution.
    By original intent,NOT by the current fad or desired “interpretation” of word and phrases long understood.
    Written law’s meaning is supposed to remain constant,so that the ordinary citizen can rely on it meaning the same no matter how the times change. NOT to differ in meaning depending on the whims of a ruler or junta,or by popular demand. The SC has failed miserably in that task,they seem to be more concerned with maintaining “precedent” than anything else,desiring to not “rock the boat”. That’s just perpetuating past mistakes.

  20. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

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  21. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

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  23. Liliana . if you think Lawrence `s blog is incredible, I just purchased a new Honda after earning $5741 this – 4 weeks past and also 10 grand lass month . it’s by-far the most-comfortable job I have ever done . I started this four months/ago and almost immediately began to make minimum $85… p/h .

    see this……………. http://www.BuzzNews10.com

  24. Liliana . if you think Lawrence `s blog is incredible, I just purchased a new Honda after earning $5741 this – 4 weeks past and also 10 grand lass month . it’s by-far the most-comfortable job I have ever done . I started this four months/ago and almost immediately began to make minimum $85… p/h .

    see this……………. http://www.BuzzNews10.com

  25. What is SCOTUS supposed to do? Mr.Sullum, what does the SCOTUS actually do? The Dred Scott decision for one.

  26. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

    …….. http://www.jobprofit9.com

  27. until I looked at the paycheck saying $4730 , I did not believe that…my… brother woz like actualy bringing in money part time from there computar. . there friend brother started doing this for less than 7 months and resently paid for the morgage on there home and bought a new Cadillac …….

    …….. http://www.jobprofit9.com

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