In the third presidential debate I found myself screaming at Donald Trump when he addressed Chris Wallace’s questions regarding his Supreme Court appointments.
Trump, I assumed, fell into the litmus test trap when he answered Wallace’s first question on gun rights. Trump said, “We are going to appoint justices that will feel very strongly about the Second Amendment.”
Trump threw out a another litmus test when Wallace then asked, “Do you want the court, including the justices that you will name, to overturn Roe v. Wade, which includes, in fact, states a woman’s right to abortion?”
Trump’s answer in part: “If we put another two or perhaps three justices on, that is really what will happen. That will happen automatically in my opinion. Because I am putting pro-life justices on the court.”
Surely, he didn’t really mean to say that!
There are two kinds and only two kinds of Supreme Court justices:
- Those who believe their job is to simply interpret the Constitution and, when the meaning of a specific word or phrase is in doubt, they go back to the original intent of the founders. These justices are called “originalists.”
- Those who believe the Constitution is a “living instrument” which can be twisted and reshaped to conform to the popular culture or their own belief system. These are activist justices who often usurp the legislative branch and make law.
Liberals like Hillary Clinton believe in judicial activism and they make no bones about it, but what about Trump? He stated many times that he will appoint justices in the mold of Antonin Scalia, who was an originalist. Surely, Trump misspoke. He would correct himself at the appropriate time.
That 60 Minutes interview Sunday was a perfect opportunity to set the record straight, but he doubled down when Leslie Stahl asked, “(A)re you looking to appoint a justice who wants to overturn Roe v. Wade?” Trump answered in part, “I’m pro-life. The judges will be pro-life…”
When Stahl pressed,Trump bounced off into the controversy over gun control and volunteered, again, that he will be imposing a second litmus test: “(T)hey’re going to be very pro-Second Amendment.”
Later Trump began tying himself in knots when Stahl asked him about gay marriage. Trump maintained, “(I)t’s irrelevant because it was already settled. It’s law. It was settled in the Supreme Court. I mean it’s done.”
But wait! Stop the presses!
In that third presidential debate Trump told Chris Wallace that Roe would eventually be overturned after he had put two or three of his justices on the Supreme Court. Roe v. Wade has stood for more than 43 years while Obergefell v. Hodges — the split decision on gay marriage — was handed down just last year. How can the recent 5-4 decision be settled when the four-decades-old 7-2 Roe decision is not?
Trump likely is fine with the issue of gay marriage, but Antonin Scalia, his model justice, most certainly was not.
While the majority in Obergefell held that state same-sex marriage bans are a violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses, Scalia maintained that the Court had “no basis” for striking down legislation that the Fourteenth Amendment does not expressly forbid.
Scalia’s blistering descent called the Obergefell ruling a “threat to American democracy,” stating that the real issue is who rules us. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.”
When Trump released that list of individuals from which he will select his Supreme Court appointments he specifically stated, “I will appoint justices, who like Justice Scalia, will protect our liberty with the highest regard for the Constitution.”
Earth to Trump: That type of individual does not impose his or her will in deciding cases. The only issue to be decided by these jurists is whether the law in question is constitutional. It is the job of the legislators — the direct representatives of the people — to make our laws.
Trump would do well to study the Constitution and the intent of the framers.
Liberals and conservatives alike have nothing to fear from originalist justices who will not overstep their bounds. Our Constitution, with its separation of powers, has served us well and has allowed our democratic republic to long endure.