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Courting contempt

17 November 2016 By Reynolds Holding

America’s highest court may be headed for a supreme mess. President-elect Donald Trump tried to reassure conservative allies before the election with a list of 21 largely credible successors for the late Antonin Scalia and perhaps other Supreme Court justices. His volatile temperament and seeming disdain for the rule of law, however, make the choices tough to predict. Both sides of the political spectrum have reason to worry.

In four years, the court could change dramatically. A new justice eventually will fill the vacancy left by Scalia’s death in February. It almost certainly won’t be Merrick Garland, President Barack Obama’s centrist choice. As many as three other fresh faces may also adorn the bench, considering Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer are all 78 or older.

Trump, a Republican, has led conservatives to believe any replacement will share their views. The list he released in May and supplemented in September includes federal judges Diane Sykes, Neil Gorsuch, William Pryor and Amul Thapar, all of whom are right-wing but widely respected jurists. Their presence on a court now ideologically divided 4-4 could threaten public-sector unions, affirmative action, abortion rights and a host of corporate and financial regulations that might fail stricter cost-benefit analyses.

Nothing obligates the erstwhile reality-TV star to stick to his list, however. He fancies himself a dealmaker and might readily compromise with Democratic senators who filibuster right-leaning nominees. Unless the Republican majority eliminates the 60-vote threshold required to approve Supreme Court hopefuls – a real possibility – the nation could end up with justices who satisfy almost no one.

Trump also could just ignore the list altogether and pick nominees compliant with his views. If his recent statements can be taken seriously, and are used to inform his nominees to the court, that should put a fright into nearly everyone.

Over the course of the campaign, he advocated barring Muslims from entering the country, loosening libel laws to more easily sue critics and disqualifying a federal judge he falsely accused of being Mexican and biased against him in lawsuits challenging Trump University. He said he would choose Supreme Court nominees willing to look into Hillary Clinton’s emails (justices don’t investigate) and faulted people for criticizing his sister, a federal judge, for “signing a certain bill” (judges don’t sign legislation).

Those comments suggest a serious misunderstanding of the law and disrespect for the First Amendment, the separation of powers and the U.S. Constitution generally. Advisers might well dissuade Trump from selecting only justices who agree with his views, but he also has a record of firing people whose recommendations he doesn’t like.

Even if confidants or the Senate forced Trump to pick more esteemed jurists, it’s conceivable that he – like a populist White House predecessor, Andrew Jackson – would defy rulings. In 1832, the Supreme Court overturned the conviction of a non-Native American for being on Native American land without a Georgia state license, which the justices held unconstitutional. They ordered the prisoner released, presumably by federal marshals, and Jackson allegedly responded: Chief Justice “John Marshall has made his decision; now let him enforce it!” Georgia released him anyhow.

Thomas Jefferson and Franklin Roosevelt also strongly resisted judicial power. In 1937, for example, Roosevelt proposed adding up to six more justices to the top court so he could win approval of New Deal programs ruled unconstitutional. The legislation failed, but the president eventually gained a favorable court majority.

In all three instances, the presidents were engaged in legitimate disagreements over the separation of powers between the executive office and the courts. Trump’s animosity toward the judge hearing the Trump University cases seems far more personal and suggests a basic lack of respect for the judiciary branch.

In any event, there’s a silver lining in even the worst-case scenario. The Supreme Court decides only about 70 cases a year, leaving the real action to the federal courts below. After eight years of Obama, the judges on those courts are overwhelmingly Democratic appointees, and it will take some time for Trump to replace them.

Anxiety over what the new president will do may, of course, be overblown, especially given the strength of America’s institutions and rule of law. Yet Trump’s more outlandish statements are hard to ignore. If they truly reflect his thinking and how he will act, liberals and conservatives alike would do well to recall the words that open every session of the Supreme Court: “God save the United States and this Honorable Court.”


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