Trump’s dance with the law

US President-Elect Trump may have four Supreme Court vacancies to fill in the next four years – James D Zirin examines the history of the court’s politicisation, some surprising picks and the impact on jurisprudence

When President-elect Donald Trump met with President Obama at the White House in November for an initial get-together, Obama had a few words of advice. ‘Get a strong legal team around you,’ Obama said in substance. 

‘They will help you avoid ambiguity.’

Good advice to get a lawyer. Trump has proved himself no stranger to legal entanglements. He just settled for $25m several lawsuits alleging fraud in his management of Trump University. More importantly, the US Constitution requires Trump on 20 January to take an oath to ‘faithfully execute the [laws] and… preserve, protect and defend the Constitution of the United States’. And, during the election campaign Trump repeatedly advocated policies and practices that would obviously violate the Constitution. He repeatedly threatened the news media with libel suits for their sharp criticisms. He proposed that the Army ‘summarily’ execute Sergeant Bowe Bergdahl, a soldier facing a court-martial for deserting his post in Afghanistan. Bergdahl has not even been found guilty of anything, let alone a crime that would be a capital offence. He proposed deporting natural born citizens of the United States whose parents were illegal immigrants. He proposed banning Muslims from the United States, and then dialed back to people coming from countries with a record of terrorism. He proposed the registry of Muslims within the United States, including American citizens with no criminal record, a policy resonating with the execrable Japanese-American internments during World War II. He proposed compromising the national debt even though the Constitution provides that the obligations of the United States ‘shall not be questioned’. Since the election, Trump has said that symbolic protesters who burn the flag should be prosecuted and stripped of their citizenship. The Supreme Court had held in a judgment oddly joined in by the late conservative Justice Antonin Scalia, that flag burning is protected free speech, and held squarely in an earlier case that someone cannot be involuntarily stripped of his or her citizenship as punishment for a crime.

And, while Trump is busily seeking to organise a government with some 4,000 jobs he must fill, he will have no greater appointment obligation than his next appointment to the Supreme Court to fill the vacancy created by the death last February of Justice Scalia. For in America, the Supreme Court is the last word on our written Constitution.

Disappointments and dissenters

Presidents try to appoint Supreme Court Justices who share their politics. They can only do this with the ‘advice and consent’ of the Senate, which usually does not present a problem. Sometimes, Presidents are surprised by their picks. Earl Warren and William Brennan’s liberal performance on the bench famously disappointed Eisenhower. David Souter disappointed George H W Bush. But our Justices are appointed for life, and are supposed to have total independence.

Franklin Roosevelt wanted to reward the Dixiecrats for their support in the 1936 election so he appointed Senator Hugo Black of Alabama, an ardent New Dealer. Roosevelt, surely the most progressive President of our time, was confident as to how Black, who had served in the Senate for a decade, would come out on his social and economic programs. FDR overlooked that Black was a former Ku Klux Klan member, who had spoken out against the Catholic Church at Klan meetings throughout Alabama. Surprise! On the bench, Black turned out to be a staunch protector of constitutional rights, and one of the most influential Justices of the 20th century. He saw the Constitution as protecting the minority from the tyranny of the majority.

How Black made such a startling ideological turnabout has never been fully explained beyond that he said he regretted his Klan membership, and had joined the Klan only to get votes. It is hard to imagine Trump appointing a Klansman, past or present, but you never know. One thing we have learned, Trump is unpredictable.

Historically, Justices have often interpreted the Constitution in accordance with their pre-appointment political leanings. Oliver Wendell Holmes, a Republican appointed by Theodore Roosevelt, and Louis D Brandeis, a Democrat appointed by Woodrow Wilson, however, frequently joined in some of the court’s most notable dissents. Often, those dissents later became the law.

A modern partisan divide

While politics perhaps always played a role in Supreme Court outcomes, the court’s modern partisan divide began when Ronald Reagan appointed Justice Scalia in 1986. Scalia, unanimously confirmed by the Senate, was determined to push a right-wing agenda. Eventually, he became the unabashed leader of the conservative wing. In his opposition to abortion, strict separation of church and state, gay rights, and affirmative action, Scalia’s uncommon intellectual gravitas forcefully led other conservative Justices to his desired outcome. In the most politically partisan of cases, he cast the deciding vote in Bush v Gore effectively electing a Republican President, George W Bush. Since the Bush presidency, which resulted in the appointment of Alito and Roberts, the court has often voted in partisan blocs, and the Justices make no bones about it. ‘We [liberals] have made a concerted effort to speak with one voice in important cases,’ said Justice Ruth Bader Ginsburg in an interview last year. The ‘important cases’ have been not only in the politically charged worlds of ‘gays, guns and God’, but in the fields of campaign finance, immigration, voting rights, reproductive rights and healthcare. That means that judges appear to base their opinions on preferred policy choices found outside the Constitution. As Scalia himself noted, the due process and equal protection clauses of the Constitution are ‘empty vessels’ into which the Justices pour their political views. Indeed, the court is as polarised as are our people and the other national institutions: the Congress, the think tanks, and even the media.

Scalia the ‘firebrand’

Scalia exacerbated the situation in death as he did in life. The Republican majority Senate refused to hold hearings on Obama’s nominee to replace Scalia, Merrick Garland. With an eight-person bench, the potential for a 4-4 tie became a reality. Where the Supreme Court deadlocks, the decision of the lower court is left undisturbed, and the action of the Supremes has no precedential value. In the nine months since Scalia’s death, this has happened three times in important cases involving unions, immigration and the voter registration case deadlock last August in a case arising from North Carolina. In all of them, Scalia’s presence on the court would have probably changed or else reinforced the outcome. If changing judges changes law, we may ask what law is.

The bedrock foundation of the rule of law is public acceptance of court decisions. The Supreme Court has no army to enforce its decisions as Alexander Hamilton, and Andrew Jackson later pointed out. Always the firebrand, Scalia said with some relish: ‘Judges have been known to be… politically partisan.’ Others, such as Judge Richard Posner of the Seventh Circuit Court of Appeals and Professor Erwin Chemerinsky, Dean of the University of California Law School at Irvine, have deplored the court’s partisanship, and have charged that the Justices are acting like politicians in robes. Meanwhile, the Justices, quite disingenuously, fall all over themselves, claiming, as did Chief Justice Roberts, that they are mere umpires calling balls and strikes – the oracle not Apollo. Justice Bader Ginsburg said that what she cared ‘most about... is that we want this institution to maintain the position... where it is not considered a political branch of government’. This is why Chief Justice Roberts has correctly expressed a preference for deciding cases on narrow grounds that would achieve consensus rather on sweeping policy declarations that would divide the court along ideological lines.

Risks of politicisation: a dysfunctional court?

With some of the statements made this election cycle, the judiciary has become only more politicised. Trump said he wanted to appoint Justices of ‘similar views and principles’ to Justice Scalia, and who will ‘automatically’ overturn Roe v Wade, the landmark 1973 abortion decision, and reaffirm the Second Amendment, which guarantees certain gun rights. In his post-election 60 Minutes TV interview, Trump said he was ‘pro-life,’ and vowed only to appoint Justices who were pro-life. With a Republican Senate majority, he could readily make good on his pledge unless the Democrats block his appointments by filibuster as the Senate Republicans said they would do if Hillary were elected.

Hamilton and the other Founding Fathers gave us three branches of government: two political, and one judicial. The separation of powers was understood to prevent a tyrant from taking over the government. Somehow, it’s worked for 227 years. When the Supreme Court becomes politicised like the other two branches of government, and this happens too often, the court becomes dysfunctional. Polls show that the more the court is perceived as a political court, the more confidence in its rulings is undermined, the rule of law disrespected.

Before the Justices go into conference, each judge shakes the hand of the remaining eight – a total of 36 shakes with a nine-member bench. The handshaking ritual is supposed to signify a shared commitment to the Constitution and the rule of law. In fact, the Justices have been deeply divided making partisan decisions in certain cases left and right by 5-4 and 6-3 votes. As Justice Elena Kagan puts it, the broad social issues the court decides in fields ranging from abortion to gay rights have ‘a kind of values feel to it’. The ‘values’ of the Trump appointees may be the values that prevail.

Beyond the Scalia vacancy, Trump may have as many as three vacancies to fill in the next four years. If he replaces the aging Justices Ginsburg, Kennedy and Breyer with young rock-ribbed conservative Justices, he may well transform the court’s jurisprudence for decades to come.

Contributor James D Zirin, a lawyer, is author of Supremely Partisan: How Raw Politics Tips the Scales in the US Supreme Court

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James D Zirin

James is a leading litigator in the US federal and state courts and author of The Mother Court – Tales of Cases That Mattered in America’s Greatest Trial Court (2014) and Supremely Partisan: How Raw Politics Tip the Scales in the US Supreme Court (Rowman & Littlefield, 2016)