How many conservatives have been happy with the performance of the Supreme Court for about the last 50 years? Anyone…anyone at all??
That’s how long our court is supposed to have been “conservative” according to the liberal intelligentsia. In fact, going back even farther, since 1953 there have been 25 justices appointed to the Supreme Court. Of those 25, seventeen were appointed by Republican presidents. Yet since 1968, when people believe the court turned “conservative,” we have seen an ever increasing willingness of the court to wade into legislative issues best left to the people, finding new rights that never existed in the Constitution, and an ever expanding list of left leaning decisions.
Whether the issue is eminent domain, or striking down the Defense of Marriage Act, or declaring that the people don’t have standing to defend their own laws, or upholding abortion rights, or forcing gay marriage on the country, or declaring that states don’t have the right to uphold US laws, even when the Federal Government won’t, or upholding affirmative action, or striking down safety regulations at abortion clinics, or upholding Obamacare, the result has been the same. The conservative side has lost.
In fact, it was the appointments of Dwight D. Eisenhower and Richard Nixon that gave us the landmark abortion case, Roe v. Wade, to begin with.
It’s been so bad that an analysis done by Scotusblog of the 2015 session found there were 26 cases that were both close (5-4 or 6-3) and that also broke down along ideological lines, and in those cases, the liberals won 19 of them. The conservatives only won 7.
The only significant conservative victory in the last 30 years is the Heller decision, but even that was more of the “half a loaf is better than no loaf” variety. In that decision the court finally recognized the individual right of American citizens to keep and bear arms, but they completely ignored the “shall not be infringed” part of the 2nd amendment when they declared that the government has the right to set “reasonable” restrictions on gun ownership. This has led to the government adding more and more burdensome regulations, and attempts to create more and more classes of people who can have their 2nd amendment rights revoked.
Does this mean we shouldn’t care about nominating conservative judges to the Supreme Court? Absolutely not. It is far better to have judges that are politically conservative (both fiscally AND socially) and that respect the original intent of the Constitution, and we should absolutely strive toward that end. The reality, however, is that we have not had a reliably socially conservative court in my 46 years on this earth, and the track record of Republican presidents in this area has been far from stellar. Even Ronald Reagan only had about a .333 batting average in this respect, putting one conservative (Scalia) and two swing votes (Kennedy, O’Connor) on the court.
Despite the dismal record of Republicans in this area, the appointment of Supreme Court judges has been one of the loudest rallying cries to try and get people to board the “Trump Train.” (Ironically, it was one of the most important points used AGAINST Trump in the primaries, but Trump supporters seem to forget about that part). If Clinton is elected, the argument goes, Hillary will appoint 3 or 4 liberal justices, and we will lose the court for a generation. If Trump is elected, he will appoint good judges in the mold of Antonin Scalia.
First, let’s look at this with a little perspective. Hillary Clinton will not be appointing 3 to 4 Supreme Court judges. The most judges any president has appointed to the court in the last 30 years has been two. The most judges any Democrat president has appointed to the court in the last 60 years has been two.
To truly understand the impact a president can have on the court you need to consider two main factors:
1 What are the philosophies of the president making the choice?
2 Which justices are most likely to retire based on which party controls the White House?
When it comes to the philosophies of each candidate Trump and Clinton are both social liberals. They both support abortion, gay marriage, transgenderism, affirmative action, and gun control. It is reasonable to assume that both Trump and Clinton will appoint socially liberal judges given the opportunity. In fiscal and other issues, Trump is more of a capitalist than Clinton is, so when it comes to corporate rights or other business related decisions, Trump is more likely to appoint judges that would side with Republicans when it came to issues like Citizens United. The bottom line is that there will be no difference in the temperament of judges appointed by either Clinton or Trump when it comes to social issues. They will all be liberal.
The second factor we need to consider is which justices are likely to retire based on who is President?
It is not a big secret that judges appointed by Republicans are more likely to retire under Republican presidents, and judges appointed by Democrats are more likely to retire under Democrat presidents. It is rare for a death to create a vacancy on the court. Over the last 100 years there have been 41 vacancies on the court and 31 of those vacancies were caused by retirement or resignation. Only 10 vacancies were due to deaths and only three of those have occurred in the last 60 years. The most likely cause of vacancies is retirements and this is where the uniformity of the socially liberal leanings of Clinton and Trump really becomes a problem.
There is already a vacancy on the court right now with the death of Justice Scalia, who was one of the most conservative justices on the court. Whether Hillary wins or Trump wins, if they both appoint judges that match their philosophies, this seat is going to flip from solid conservative to moderate/liberal. I know Trump fans will disagree, but the overwhelming evidence says that this seat is going liberal no matter who wins the White House. What happens next, though, could spell bigger problems.
If Hillary wins, there are only two liberal judges that may step down. Ruth Bader Ginsburg is 83 years old, and the most likely Justice to retire next. Stephen Breyer is also 78 years old and may decide to step down. Elena Kagan and Sonia Sotomayor aren’t going anywhere. Replacing Breyer and Ginsburg would be trading liberals for liberals and wouldn’t affect the balance of power on the court, so the most likely outcome of a Clinton Presidency is a net gain of one seat for the liberals.
If Donald Trump wins the presidency, you are looking at two very different judges possibly stepping down. Anthony Kennedy is about 80 years old, while Clarence Thomas is 68 and has already made rumblings this year about possibly stepping down. Samuel Alito and John Roberts are not going anywhere. Kennedy is considered a swing vote, but Thomas is the most conservative judge left on the court. If they step down, their seats would be in the hands of a man who has touted his liberal sister and the socially liberal billionaire, Peter Thiel, as possible appointees. If Thomas and Kennedy retired, and Trump nominates judges that match his belief system, we could actually see a net swing of 2.5 judges away from the conservatives and into the hands of the liberals. (I only count Kennedy as half a conservative at best).
“Well, the Republicans in the Senate will prevent Trump from appointing these socially liberal judges by refusing to confirm them,” you say. Really? What makes you think that? For years now the establishment has wanted social conservative issues to just go away. Oh, they want our votes, and they give lip service to our issues, but when the rubber hits the road we are always stabbed in the back. Some have even supported losing these social issues in the Supreme Court in the hopes it would take the issue off the table. In fact, there were many people who believed the ruling that upheld Obamacare was a GOOD thing! They felt that, because the court upheld the constitutionality of Obamacare, it kept the issue alive for Romney to use against Obama in the 2012 elections. How’d that turn out for us??
Furthermore, you really have to understand that the average die-hard Trump supporter DOES NOT CARE about these issues. Just take a look at the comments of Ann Coulter and you will know all you need to know about a Supreme Court populated by Trump appointees:
— Ann Coulter (@AnnCoulter) August 16, 2015
I want a conservative Supreme Court. I want judges that will not just be fiscally conservative, but that will also uphold the socially conservative values that have far too often been left behind. We have three solid socially conservatives judges on the court and one swing vote. I don’t see any gains coming in the next four years, and I want to lose as little ground to the liberals as possible. In order for me to believe that Trump would appoint judges like Clarence Thomas and Antonin Scalia, I would have to believe that a 70 year old man who has been a liberal Democrat all his life will suddenly go against everything he has ever believed. I would also have to believe that a man who has proven that he does not take the advice of his subordinates will suddenly be swayed by wise counsel when it comes to such a momentous decision.
What do you believe is the most likely outcome?