One of the most common arguments you hear aimed at conservatives who are reluctant to support or even vote for Donald Trump is that, as talk-show host and law professor Hugh Hewitt put it today, “It’s the Supreme Court, stupid.” The idea is that even if you consider Trump as bad as Hillary Clinton in every area of foreign and domestic policy, the most important long-term stakes involve the balance of power on the U.S. Supreme Court, where Hillary Clinton will appoint “liberal activist” justices and Donald Trump has published a list of jurists he’d appoint that was vetted by the Heritage Foundation and the Federalist Society.
My colleague Jonathan Chait has appropriately mocked Hewitt’s suggestion that SCOTUS will ultimately rule on everything conservatives care about. But there are enough subjects that actually are within SCOTUS’s purview to justify a “high stakes” argument from the right. In the immediate future, the Court is likely to set far-reaching precedents on matters ranging from immigration enforcement to collective-bargaining rights to global climate-change regulations to whatever new legal attack on Obamacare conservatives devise (if they need to). The possibility of a SCOTUS reversal of its Citizens United decision on campaign-finance regulation was a major issue in the Democratic presidential nominating contest, and it matters to conservatives to avoid that development. For many Christian conservatives, ending legalized abortion via a reshaped SCOTUS is itself the alpha and omega of political engagement, and a wide-ranging interpretation of “religious liberty” is important as well. Beyond that, some conservative thinkers look forward to a future Court that would not simply refrain from “liberal” judicial activism, but would substitute a return to a very old jurisprudence that prohibited congressional or executive initiatives that interfered with “fundamental” property rights.
So at least some people on the right are open to the “it’s all about SCOTUS” argument. But there’s a problem with it: Does Donald Trump really strike anyone as the kind of leader who will respect and restore the rule of law?
Indeed, that’s the question some right-wing legal scholars are asking in rejecting or at least expressing skepticism toward the idea of supporting Trump because of their own legal and constitutional preoccupations. Reason queried ten prominent conservative and libertarian legal thinkers on this subject, and their responses are summarized as followed by the conservative legal blog the Volokh Conspiracy:
Five of the 10 answers were some form of “no.” Most of these responses argued that while Trump’s judicial nominees might be marginally better than Hillary Clinton’s, that possible benefit is outweighed by the damage Trump would do as head of the executive branch. (Jonathan Adler, Alan Gura, Orin Kerr, Roger Pilon and Timothy Sandefur)
Two of the answers were some form of “maybe.” Generally, they argued that Trump’s judicial nominees would be better than Clinton’s and that reasonable people will disagree on whether other concerns about Trump outweigh that. (Randy Barnett and Michael Rappaport)
Finally, three of the answers were some form of “yes.” Generally, they argued that Trump’s judicial nominees clearly would be better than Clinton’s. These answers did not take a clear position on whether people should vote for Trump, but instead responded only to the question of whether Supreme Court appointments provide a good reason to do so. (David Kopel, Glenn Reynolds and Carrie Severino)
While three of the “yes” answers were somewhat tentative, the “no” answers tended to be rather adamant. Here’s Alan Gura:
[S]hall we entrust [SCOTUS appointments] to an insecure lunatic, a fascist caudillo, an autarkist, a proud ignoramous and conspiracy theorist, the aspiring leader of a “Workers’ Party” who plays footsie with racists and anti-Semites and might well be a Russian agent?…. [T]here is something deeply contradictory about the notion of electing a power-hungry strongman on the theory that he’ll appoint judges that respect and enforce constitutional limits on government. Did Hugo Chavez appoint great judges? Did Putin, Mussolini, or Erdogan? Would it have mattered had they sort-of kinda suggested that they would?
So if this many scholars who should most prioritize right-leaning SCOTUS appointments aren’t willing to take the risk of electing Trump, why should some regular conservative voter do so? It’s a very good question.