The January 1973 issue of National Lampoon boasted a now-infamous cover: a man’s hand aims a revolver at a wary dog, above the headline: “If You Don’t Buy This Magazine, We’ll Kill This Dog.”
We increasingly hear a similar sales pitch from Donald Trump’s staunchest supporters to the conservatives who doubt him: no matter how terrible you think Trump might be, the Supreme Court is at stake in this election. Donald Trump might appoint young judges committed to applying the Constitution in accordance with its original meaning—that is, “originalist” judges. Hillary Clinton certainly will not. If you don’t vote for Donald Trump, then a newly liberal Supreme Court will be your fault.
The point was put most bluntly by radio talker—and former Supreme Court clerk—Laura Ingraham, who told Sean Hannity in August that “it’s actually immoral not to vote for Donald Trump if only for the reason of the Supreme Court”:
Stripped from Ingraham’s and Hannity’s characteristic hyperbole, the basic point is a fair one. The Supreme Court is extremely important in American life and government—more important than it should be—and if Clinton wins the election in November she will be poised to replace not just the late Justice Antonin Scalia (whose seat remains vacant), but also any other justices who leave the Court.
I certainly would prefer to see Justice Scalia replaced by an originalist. And if Justices Ginsburg, Kennedy, or Breyer happen to retire in the next four years I would much rather see them replaced by young originalists, including many of the names that Trump included in his list—sorry, lists—of prospective Supreme Court nominees. Or by one of the other great originalist judges oddly omitted from his list(s), like Judge Brett Kavanaugh of the D.C. Circuit.
Given all of this, it is all the more disappointing to me that the GOP chose to nominate an erratic man committed to confirming and re-confirming his manifest disqualifications—and a man who, it was clear from the start, could never actually win in November, precisely because his lack of character would inevitably prove to be his undoing. Until recently, one could hope that Trump might eventually be dropped from the ticket in favor of a true conservative, but now even that hope is faded. Which means that Trump promoters’ argument about the Supreme Court must be taken very, very seriously.
The most direct response to the pro-Trump argument came Monday morning, in the form of a public letter signed by over two dozen lawyers, legal scholars, and other prominent constitutionalists. In fact, its signatories include some of the most significant scholars in the history of modern conservative originalism, including Richard Epstein, Steven Calabresi, and Keith Whittington, as well as George Will and Yuval Levin. It does not include all prominent originalists—indeed, it would not even be accurate to suggest that it includes most of them. But it reflects a critical mass.
The group, organized by professors Stephen Sachs and William Baude (who kindly allowed me to sign on, too), focuses on the constitutional responsibilities entrusted to the president, and declares:
And on the Supreme Court, they add:
Rejecting what some have called the “Flight 93” theory of this election—namely, that American constitutional government will perish in a fiery wreck if Hillary Clinton occupies the White House for the next four years—the letter notes: “We are under no illusions about the choices posed by this election—or about whether Hillary Clinton, were she elected, would be any friend to originalism. Yet our country’s commitment to its Constitution is not so fragile that it can be undone by a single administration or a single court. Originalism has faced setbacks before; it has recovered. Whoever wins in November, it will do so again.”
The full letter can be read here.
Adam J. White is a research fellow at the Hoover Institution. The views he expresses here are his own, and not those of the Hoover Institution or the “Originalists Against Trump.”
