Election 2020

Why the SCOTUS Issue Might be Bad for Trump at the Third Debate

(Twitter: @USChamber)

Fox News’ Chris Wallace will moderate the third presidential debate on Wednesday night, and he has announced that the debate will focus on the issue of the Supreme Court, along with immigration and “fitness to be president.” While the Supreme Court may be the best reason for conservatives to support Trump, the issue also presents a key weakness for the Republican nominee.

On Monday, conservative legal scholars published a manifesto, “Originalists Against Trump.” These conservatives urged Americans to vote against the Republican nominee, flatly declaring, “Whatever reasons there might be to support Donald Trump, the Constitution is not among them.”

Many well-known conservatives signed the manifesto, including George Will, the Ethics and Public Policy Center’s Yuval Levin, Professor Richard A. Epstein, Romney-Ryan 2012 domestic policy director Oren Cass, Professor Jonathan H. Adler, and George Mason University law professor Ilya Somin. Contrary to Hugh Hewitt, they argue that Trump would actually be a disaster for the Supreme Court and adherence to the Constitution in American governance.

“Trump’s long record of statements and conduct, in his campaign and in his business career, have shown him indifferent or hostile to the Constitution’s basic features— including a government of limited powers, an independent judiciary, religious liberty, freedom of speech, and due process of law,” according to the manifesto. That document laid out four specific duties of the president of the United States, and why Trump cannot be trusted to honor them.

The President must take care that the laws be faithfully executed; he admires dictators as above the law.

The President must serve as Commander in Chief, enforcing rules for the government and regulation of the land and naval forces; he praises armed repression and makes light of the laws of war.

The President must hold a public trust on behalf of all Americans; he courts those who would deny to others the equal protection of the laws.

The President must preserve, protect, and defend the Constitution; he has treated the legal system as a tool for arbitrary and discriminatory ends, especially against those who criticize him or his policies.

While Trump has released not one but two lists of excellent potential Supreme Court nominees, his character and public positions demonstrate a disregard for the rule of law perspective prized by originalists. “We do not trust” Trump to nominate good Court candidates, the manifesto declared. But “more importantly, we do not trust him to respect constitutional limits in the rest of his conduct in office, of which judicial nominations are only one part.”

The manifesto did not praise Trump’s main opponent, Hillary Clinton, and indeed admitted that she is unlikely to “be any friend to originalism,” but it also attacked the hyperbole of Court alarmists like Hugh Hewitt.

“Our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court,” the authors of the manifesto declared. “Originalism has faced setbacks before; it has recovered. Whoever wins in November, it will do so again.”

Next Page: Reasons to expect originalism would indeed recover from a Clinton presidency.

The manifesto has an excellent point, and The Atlantic‘s Conor Friedersdorf explained why. Friedersdorf quoted Hewitt, an excellent radio host whose commitment to conservatism is not in doubt, but who has overstated the constitutional threats of a Clinton presidency. According to Hewitt, “confirmation of even one Hillary Clinton nominee to the Supreme Court will turn the court in a hard left, almost certainly irreversible direction.”

Friedersdorf worked with George Mason University law professor Ilya Somin to investigate each of the Supreme Court cases Hewitt cited as likely turning points (cases where the Court would have gone irreversibly in a liberal direction had Scalia not been on the bench), and argued that they do not support his point.

Somin argued that many of the cases Hewitt cited, like Michigan v. EPA and the “navigable waters” case Rapanos v. United States, are “statutory cases.” This means they involve the interpretation of regulations and whether those specific regulations are acceptable interpretations of laws passed by Congress.

“Anything that’s statutory is much less likely to be reversed,” Somin argued. “And anything that’s statutory is not irreversible, both because Congress can change it at any time and because in some cases, depending on the grounds, even the executive can change it.” That’s not to say that cases involving regulatory overreach are not important when it comes to adhering to the Constitution — merely that such cases would not push the Court in an “irreversible” liberal direction.

Even Burwell v. Hobby Lobby, a key religious freedom case, was effectively a statutory case. A liberal Supreme Court would not be likely to overrule it, and if so, Congress could pass a new law.

When it comes to the key Second Amendment case District of Columbia v. Heller, the case did establish an individual right to bear arms, but most gun control legislation would not be affected by this decision, Somin argued. “I think it is more likely that a new Democratic nominee (to the Court) would interpret Heller narrowly rather than overrule it,” he said. Furthermore, he also criticized Trump on Second Amendment grounds — since the Republican nominee has embraced the position that anyone on the federal no-fly list should not have the right to own a firearm.

Finally, while Hillary Clinton has often repeated that she will only nominate justices who promise to overturn Citizens United v. Federal Election Commission, Trump does not represent a different position. This specific case is unpopular with the public, but it upheld the free speech rights of citizens to make and air political films. Both Friedersdorf and Somin defended the case, saying that it rightly curtailed campaign finance laws, but they added that Trump does not stand for this position.

At the debate Wednesday, Trump should hit Clinton on her liberal Supreme Court nominees, but conservatives should not kid themselves. It would not be the end of the world — the end of the Court, the end of the Constitution, or the end of America — if she won the presidency, especially if a Republican House and Senate remained to stand against her.

Don’t get me (and all the originalists) wrong — a Clinton victory would be a loss for conservatives. But a Trump victory does not represent a great uniting hope. It is acceptable for conservatives to back the Republican nominee as perhaps slightly better for the Court than Clinton, but the Supreme Court is not the trump card his campaign (and Hugh Hewitt) seems to think it is.

There’s more to the presidency than Supreme Court nominations, and if Trump is not trustworthy in other things, why should conservatives trust him on this issue? Rather than only attacking Clinton, the Republican nominee should make that case in the debate on Wednesday.