Will the election of Donald Trump result in a libertarian-leaning Supreme Court that imposes constitutional limits on the Trump administration and its big-government agenda? Most sensible observers would say that the answer to that question is a clear no. But Ed Kilgore of New York magazine is not to be deterred by anybody talking sense. In Kilgore’s bizarre view, liberals should fear a Trump presidency precisely because Trump is likely to stack the Supreme Court with libertarian justices. Why would Trump do this? “To buy favor with those on the right who fear the Donald’s tyrannical tendencies.”
Kilgore’s argument only goes downhill from there. “Precisely because Trump is a loose cannon,” Kilgore insists, “he may be convinced to promise his new conservative friends what they really want on the Court: Justices who want to turn the clock back not just to 1972, when abortion was illegal in most states, but to the early 1930s when what we think of as the social safety net was considered a radical and unconstitutional idea.” Kilgore also raises the specter of a Trumpian Court resurrecting “the early-20th-century period when a chain of decisions begun by Lochner v. United States stymied progressive legislation until FDR’s threat of court-packing and then turnover in justices forced its abandonment.” (The case Kilgore is referring to is actually called Lochner v. New York. To understand what Lochner was really all about, start here.)
What’s wrong with Kilgore’s argument? How about everything. Donald Trump is a constitutional illiterate who thinks that the government should have the unfettered power to suppress speech, censor the internet, shutter houses of worship, discriminate on the basis of religion, steal private property, and punish private businesses for engaging in global capitalism. The idea that Trump—of all people—would end up transforming the Supreme Court into a hotbed of limited government, pro-Lochner libertarian legal advocacy is just plain dumb.
For a more intelligent take on the possible future of the Supreme Court under a Trump presidency, I recommend a recent item by Shoshana Weissmann in The Weekly Standard, in which she correctly observes, “The Supreme Court’s duty is to overturn unconstitutional acts, including those of the president. President Trump would not likely nominate justices who would constrain his power to its constitutionally limited bounds.”
Weissmann also shares this comment from George Washington University law professor Orin Kerr, who hits the nail right on the head: “If Trump has a choice between an originalist conservative with sterling credentials who would often block Trump, and a buddy of his who hasn’t read the Constitution but would let Trump do what he wants, who do you think Trump would pick?”
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