Conservative Mythology and the Supreme Court
| Publication year | 2017 |
Conservative Mythology and the Supreme Court
Gregg Ivers
President-elect Donald Trump had little to say about the Supreme Court during the presidential campaign season, and what little he did say usually focused on the need to protect the Second Amendment and to appoint justices who were pro-life, would overturn Roe v. Wade1 and would allow the states to take up abortion regulation. Gun owners, Trump claimed, have been "under siege by people like Hillary Clinton," and he pledged to appoint justices who would restore and protect their rights. As for abortion rights, Trump repeatedly said that "I am pro-life and I will be appointing pro-life judges," and he would prefer the matter to go "back to the individual states." In the president-elect's own words:
The justices that I am going to appoint will be pro-life. They will have a conservative bent. They will be protecting the second amendment. They are great scholars in all cases and they're people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted and I believe that's very important. I don't think we should have justices appointed that decide what they want to hear. It is all about the Constitution of, and it is so important. The Constitution the way it was meant to be. And those are the people that I will appoint.
The model Supreme Court justice for Trump is, not surprisingly, Antonin Scalia, who died in February 2016. Throughout his campaign, Trump stated that he would appoint justices to the Court—and presumably judges to the lower federal courts—"very much in the mold of Justice Scalia." Trump was not the first more recent Republican presidential candidate to hold out Scalia as his model justice. In 2012, Mitt Romney pledged in the pages of the conservative journal, National Review, that he supported "the reversal of Roe v. Wade, because it is bad law and bad medicine. Roe was a misguided
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ruling that was a result of a small group of activist federal judges legislating from the bench." Consistent with that view, Romney also stated that he would "only appoint justices that adhere to the Constitution and the laws as they are written, not as they want them to be written," and cited Scalia as a role model for any potential nominee. Four years before, Republican presidential nominee John McCain also touted Justice Scalia as the "type" of justice that he would like to appoint to the Court, although he declined to commit to nominate only justices pledged to overturn Roe. And George W. Bush, during the 2000 presidential campaign, also pledged to nominate justices like Scalia. "I have great respect for Justice Scalia," Bush said, "for the strength of his mind, the consistency of his convictions, and the judicial philosophy he defends." On this point, President-elect Trump is firmly in line with other recent Republican presidential candidates in his public admiration for the recently deceased Scalia. Considering his bumpy and often confrontational relationship with the Republican Party establishment on almost everything else in the months leading up to his stunning victory over Hillary Clinton, Trump's alignment with more recent traditional Republican candidates is remarkable.
Moreover, Trump's firm public commitment to overturning Roe and appointing "pro-life" justices who will help him achieve that goal, justices who support his personal opposition to abortion as a matter of principle, not just law, comes like a sudden bolt of lightning on an otherwise pastoral afternoon. After eight years of an Obama Administration unabashedly committed to reproductive rights and access to birth control and the widely misplaced assumption that Hillary Clinton's certain election would protect the Court for at least four more years from a frontal assault on reproductive rights, there was little talk about a world without Roe. This was especially true after the Court's 5-3 decision in Whole Woman's Health v. Hellerstedt2 in June 2016, which invalidated a restrictive Texas abortion law just a few months before the presidential season kicked into high gear. Now, should President Trump have the opportunity to name an additional justice beyond a replacement for Justice Scalia, there will no doubt be a number of states prepared to introduce new abortion measures that will return the law to its pre-Roe status. Some states might even choose to ban abortion outright, with no exception for rape, incest or the health or life of the mother.
That assumes, of course, that the Court does not rule that the Due Process Clause of the Fourteenth Amendment protects the fetus as a person. Such a
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decision is highly unlikely, if not completely implausible. Never mind that no current justice on the Court has taken the position that the fetus is a constitutional person entitled to protection as a matter of fundamental right, not even staunch critics of Roe such as Justices Samuel Alito, Clarence Thomas and Chief Justice John Roberts. No justice who has ever served on the Court has taken that position. And for good reason. The long-standing argument of anti-Roe advocates is that the Constitution does not speak to the question of abortion rights, and that responsibility for regulating abortion, in whatever context, is the responsibility of the states.3 The goal, of course, is to reduce the availability of legal abortion, something that would surely happen should the Court return this matter to the states. Congress could also enter the fray, as it did in 2003 when it passed the Partial Birth Abortion Act. That law, which the Court narrowly upheld in Gonzales v. Carhart4 (2007), gave states far more latitude to restrict access to abortion in the late stages of the third trimester, so long as it provided an exception for the life of the mother. Holding that the Fourteenth Amendment protects the fetus as a constitutional person and obligates the state to protect it by criminalizing abortion would keep the issue in the courts. That would undermine the position that anti-Roe justices—and, presumably, any prospective Trump administration nominee—have taken since the case was decided in 1973.
President-elect Trump's position that the Second Amendment has been under siege by "people like Hillary Clinton" and the Obama administration does not hold up to even the barest scrutiny. Currently, every state and the District of Columbia permit residents to carry concealed weapons. Forty-two states and the District of Columbia require a permit to carry a concealed weapon; the eight other states do not require permit. Forty-four states have open-carry laws, which permit residents to carry weapons in public places. Only three states and the District of Columbia prohibit carrying any firearm in public, whether a handgun or a rifle, commonly referred to as "long guns" in state law. Three states prohibit residents from carrying a handgun but not a long gun, and two states prohibit residents from carrying a long gun but not a handgun.5 Further protecting the rights of gun owners has been the Supreme Court, which, in two major decisions less than ten years old, District of Columbia v. Heller6 and McDonald v. City of Chicago,7 ruled that the Second
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Amendment confers an individual right to own a handgun. But Justice Scalia— there he is again—writing for a 5-4 Court in Heller, also said that the Second Amendment did not protect the "right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."8 Still, gun owners have far more rights and are entitled to far more protection under the Second Amendment than they were before President Obama took office in January 2009.
President-elect Trump's insistence that a liberal Court has stood in the way of a return to the pre-Roe abortion rights landscape and barely held the line against "people like Hillary Clinton" and presumably any Democratic president determined to undermine the Second Amendment parallels, in many respects, not just similar criticism from recent Republican candidates. His criticism of the Court echoes the rhetoric of Republican presidential candidates dating back to Richard Nixon. During the 1968 presidential campaign, Nixon emphasized the need to return to "law and order" after the chaotic events of the decade had left many Americans at odds with the criminal justice decisions of the Earl Warren-led Supreme Court. The Warren Court had dramatically expanded the rights of the criminally accused during an era in which the nation, by the time of the 1968 presidential campaign between Nixon and Democratic nominee Hubert H. Humphrey, was on the verge of a collective nervous breakdown. Nixon blamed the Court for creating an environment that protected criminals at the expense law enforcement. Appointing justices who favored a "strict construction" of the Constitution would be among his highest priorities. In 1980, Ronald Reagan, then considered the most conservative Republican nominee since Barry Goldwater in 1964, also put the Court in his crosshairs during the campaign. Reagan emphasized that the Court had unmoored the Constitution from its true meaning, and promised he would appoint justices committed to the original intent of the Framers. And that meant reversing Roe, revisiting the Court's decisions prohibiting state-sponsored religious practices and government funding for parochial schools, calling for an end to affirmative action and other measures designed to address racial discrimination and rethinking the relationship between the police and criminal defendants. His successor, George H.W. Bush, made similar promises during the 1988 campaign. Like Reagan, Bush pledged to appoint justices who would overturn Roe and carry out the conservative social agenda through the courts.
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For almost fifty years, Republican presidential candidates have campaigned against the Supreme Court. And the charges...
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