Like shipwrecked mariners clinging to a floating mast, many Republicans rationalize supporting Donald Trump because of “the court.” This two-word incantation means: Because we care so much for the Constitution, it is supremely important to entrust to Trump the making of Supreme Court nominations. Well.
In a Republican candidates debate, Trump complained that Ted Cruz had criticized Trump’s sister, a federal judge. Trump said: “He’s been criticizing my sister for signing a certain bill. You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister, signed that bill.” Trump, the supposed savior of the Supreme Court, thinks federal judges sign bills.
The mast-clingers say: Well, sure, he knows nothing about American government, including the Constitution, which he vows to defend all the way to “Article XII.” He will, however, choose wise advisers and humbly defer to them.
This does not quite seem like him, but the mast-clingers say: Don’t worry, he already has compiled a list of admirable potential nominees, and, stickler that he is for consistency and predictability, he will stick to this script written by strangers. This, too, does not quite seem like Trump, but the mast-clingers say: Don’t worry, he has said enough to reveal what his “instincts” are. Indeed he has.
The court’s two most important decisions in this century are Kelo and Citizens United. Conservatives loathe Kelo; Trump loves it. Conservatives celebrate Citizens United; Trump repeats the strident rhetoric of its liberal detractors.
Kelo did radical damage to property rights. The Constitution says private property shall not be taken “for public use” without just compensation. Until Kelo, the court had held that “for public use” meant for something used by the general public (e.g., roads, public buildings) or to remove blight. In Kelo, the court held, 5-4, that the government of New London, Connecticut, behaved constitutionally when it bulldozed a residential neighborhood for the “public use” of transferring the land to a corporation that would pay more taxes than the neighborhood’s residents paid to the government. Trump’s interests as a developer and a big-government authoritarian converge in his enthusiasm for Kelo.
Citizens United said that Americans do not forfeit their free speech rights when they band together in corporate form to magnify their political advocacy. The court held that the First Amendment protects from government restriction independent (not coordinated with candidates’ campaigns) candidate advocacy by Americans acting collectively through corporations, especially nonprofit advocacy corporations such as the Sierra Club, the National Rifle Association, etc.
Hillary Clinton favors amending the First Amendment to empower government to regulate the quantity, content and timing of campaign speech about the government’s composition and conduct. It would do this by regulating campaign spending, most of which funds the dissemination of speech. The rationale for this, and for the broader liberal objective of replacing private funding with public funding of politics, is the theory that politicians are easily bought and that private contributions breed quid pro quo corruption. Trump loudly voices this proposition.
The court has said that campaign-speech regulations can be justified to combat corruption or the appearance thereof. Trump says he has made innumerable contributions to members of both parties because, “When you give, they do whatever the hell you want them to do.”
Before he decided to solicit contributors, he said his wealth made him the only candidate impervious to corruption. It is unlikely that he would nominate to the court persons who believe that the First Amendment, properly construed, requires the deregulation of political speech. The mast-clingers should remember that Trump’s hostility to First Amendment values is apparent in his desire to “loosen” libel laws, thereby making it easier to sue or intimidate people who criticize people like him.
Most mast-clingers are properly dismayed by President Obama’s anti-constitutional use of executive orders to implement policies Congress refuses to enact. Trump promises more executive orders: “I’m going to use them much better, and they’re going to serve a much better purpose than he’s done.” So, mast-clingers straining to justify themselves by invoking “the court” are saying this:
Granted, Trump knows nothing about current debates concerning the court’s proper role. We will, however, trust that he will suddenly become deferential to others’ preferences about judges. And we will ignore his promise to continue Obama’s authoritarian uses of the executive branch that will further degrade the legislative branch. We will do this because we care so very much for the Constitution.
Washington Post Writers Group