Hillary Clinton and Donald Trump both campaigned on the issue of the future of the Supreme Court. The reason is scarcely a mystery. They knew—and more to the point they knew that the American people knew—that the next president would likely shape the Court for a generation or more. And they knew that their core supporters and others whom they hoped to reach truly cared about the future of the Supreme Court.
Why? Because the Court—rightly or wrongly—has come to play a massive role in shaping our nation’s policy on crucial issues such as abortion and the sanctity of human life, marriage and the family, and religious liberty and the rights of conscience.
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For more than 50 years, the forces of liberal secularism have, with astonishing success, prosecuted their agenda through the agency of the federal courts. The Supreme Court forced schools to abandon prayer and even moments of silence in which students might pray; it imposed the abortion license on the nation; it required all 50 states to recognize same-sex partnerships as marriages. Now liberal secularists are asking the Court to make American bathrooms conform to their ideology.
Of course, there is nothing in the actual Constitution to warrant any of these impositions or others one might cite. They are the work of men and women who have seized upon the “raw power” (to quote the late Supreme Court Justice Byron White) they enjoy as judges to transform public institutions and public morality, whipping them into line with liberal doctrine. Under the pretext of giving effect to constitutional guarantees, such as “due process” and “equal protection,” liberal judges have substituted their personal moral and political judgments for those of the people and their elected representatives in Congress and the state legislatures.
All of this has been possible because so many Supreme Court justices—including several Republican appointees—have not only personally embraced the dogmas of liberal secularism, but have adopted the idea that the Constitution is a “living document” whose “life” is breathed into it by the judges themselves—so long as the judges are reliable progressives who will put the policies of the nation “on the right side of history.”
Because of the death of the great constitutional jurist Antonin Scalia, the Supreme Court currently has a vacancy. President Obama attempted to fill it, but the Republican-led Senate declined to go forward with confirmation hearings and a vote on his nominee.
Two other justices—social liberals Ruth Bader Ginsburg and Anthony Kennedy—are in their 80s, and another—the socially liberal Stephen Breyer—is 78. Had Hillary Clinton been elected, she might have named as many as four justices. Instead, President-elect Trump will be the one to appoint the successors of any whose positions become open during his presidency.
Can Trump be relied on to appoint constitutionalist judges such as Scalia who will be guided by the text, logic, structure and original understanding of the actual Constitution? He has promised to do so, and he has, in an unprecedented move, even provided two lists of judges from which he has pledged to choose. The names on the lists are extremely impressive. They are constitutional jurists in the mode of Scalia. The only question is whether the president-elect will keep his word. It is incumbent upon people who believe in constitutional integrity and moral rectitude to hold him firmly to this commitment.
Roe v. Wade, the notorious 1973 abortion decision of the Supreme Court, is the symbol of radical judicial activism and the usurpation by judges of authority vested by the Constitution in the people and their representatives. The campaign to reverse that decision has been going on for 43 years. Currently there are three votes on the Court to reverse this anti-constitutional abomination. Justice Scalia’s successor should provide a fourth. Since Ginsburg, Breyer and Kennedy are all supporters of Roe, the replacement of any of the three of them would provide the fifth and final vote needed to achieve the goal.
Of course, if that were to happen, it would not by itself provide the protection we seek for the life of the precious child in the womb. But it would clear the way for pro-life citizens to work in the political sphere for the enactment of legislation that would honor the principle that every member of the human family—no matter how young, weak, small, vulnerable or “unwanted”—is the bearer of profound, inherent and equal dignity, and has a legally protectable right to life.
What about marriage? The Court’s imposition on the entire country of the concept of “same-sex marriage” is, of course, more recent—2015. It was handed down over the vehement (and eloquent) dissenting judgments of Justices Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. Once again, Scalia’s successor—assuming that Trump honors his commitment to appoint true Scalia-style constitutionalists—should provide a fourth vote aimed at reversing this outrageous abuse of judicial power. And then we will be one vacancy away from making the imposition on the states of “same-sex marriage” a footnote to the history of the Supreme Court’s usurpations in the cause of advancing liberal secularist ideology.
There is nothing odd—or even unusual—about the Supreme Court reversing its own bad decisions, even in constitutional cases. It has happened dozens of times in our nation’s history. Most famously, Brown v. Board of Education—the great school desegregation case of 1954—reversed the 1896 case of Plessy v. Ferguson. The Plessy case had upheld state-sponsored or mandated segregation on the “separate but equal” theory. Sometimes erroneous decisions are reversed quickly. In the early 1940s the Supreme Court reversed itself in less than three years after having handed down an opinion upholding the right of public schools to expel the children of Jehovah’s Witnesses for declining (on religious freedom and freedom of speech grounds) to join in the daily flag salute.
If Donald Trump keeps his word, his victory over Hillary Clinton will have monumental consequences not only for the Supreme Court but for the entire federal judiciary. At the trial (district) court and intermediate appellate (circuit) court levels, he will also be filling vacancies, replacing judges devoted to advancing liberal secularist ideology with faithful constitutionalists. That will be a blessing not only to many great causes—such as the sanctity of human life, marriage and the family, and religious freedom—but to the cause of the Constitution itself.
©2016 Robert P. George
Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University.