In a recent op-ed for the Washington Examiner, talk show host Hugh Hewitt argued the best case for Donald Trump is that he will appoint conservative justices to the Supreme Court.
“Every political issue has a theoretical path to SCOTUS, and only self-imposed judicial restraint has checked the Court’s appetite and reach for two centuries,” Hewitt wrote.
This has become one of the most popular arguments in favor of voting for Trump. Evangelical theologian Wayne Grudem recently made a similar argument in a Townhall column. RNC chairman Reince Priebus frequently falls back on this argument to defend the Donald.
Regardless of where one stands on the Trump campaign, this is a problematic argument for a few reasons.
For one, it is difficult for judges to refrain from judicial activism. There seems to be a natural tendency in the judiciary for the arbiters of the law to seek to expand their powers and betray conservative principles of jurisprudence.
Take, for instance, recent comments from GOP-affiliated judge Ilana Rovner. In an opinion for the Seventh District Court of Appeals, Rovner wrote in support of expanding non-discrimination laws to protect gender and sexual identity.
“It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry,” Rovner said.
Rovner was originally appointed by Ronald Reagan and then promoted by George H.W. Bush, both of whom were advised by conservatives from places like the Heritage Foundation. Yet, in this new opinion, she betrays the entire theory of constitutionalism in favor of radical sexual ethics.
This underscores an important point about the federal judiciary that runs against Hewitt’s basic argument: conservatives cannot expect the courts to rein themselves in and limit their own powers.
As conservative attorney Daniel Horowitz, writing for Conservative Review, has argued, “The lower courts are goading Justice Anthony Kennedy into taking the plunge into the abyss of judicial Gomorrah. There is no doubt as to how he would rule if and when these cases reach the eminent tribunal. This is why we will never fix the courts conventionally simply by trying to appoint better judges. Sure, there are some better tactics we can employ relative to past GOP presidents in ensuring more Republican appointees share our view of the Constitution, but fundamentally the entire legal system is broken.”
Rovner is neither the first nor the highest profile judge appointed by a Republican president to betray conservative principles, either. Reagan appointee Sandra Day O’Connor betrayed conservatives on Planned Parenthood v. Casey. Bush appointee John Roberts back-stabbed the right by voting to uphold provisions in the President Obama’s healthcare law. Some have written that the success rate for appointing conservative justices is only 60 percent.
In other words, there is absolutely no guarantee the next justice appointed by a Republican president will be a legal giant on the level of Justice Clarence Thomas or the late Justice Antonin Scalia, even if they have the Heritage Foundation’s seal of approval.
Hewitt’s argument places far too much faith in nine unelected officials in black robes in a massive marble building. In some ways, actually, Hewitt’s argument ignores the underlying causes of contemporary constitutional crises.
Rather than twiddling their thumbs and waiting for the Supreme Court to magically restore the Constitution from on high, the executive and legislative branches need to reassert their proper constitutional authority to check the other branches of government.
In the words of Supreme Court chief justice John Marshall, “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule.”
But this does not mean the Supreme Court gets to determine what truth is. As SCOTUS showed in decisions from Dred Scott to Roe v. Wade, Obergefell to Kelo v. New London, it can act unconstitutionally, just like any other branch. And, when it does, the executive and legislature must stand up for the Constitution.
As Abraham Lincoln said in his famous debates with Stephen Douglas, “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”
By placing the onus for reform on the Supreme Court, Hewitt and others close the door on serious constitutional options for frustrated conservatives and concedes too much ground to judicial supremacists.
Michael Lucchese works for the American Principles Project.