Congressional Republicans don’t need Trump to save Supreme Court

True conservatives should celebrate the GOP leadership’s rebuke of Donald Trump.

{mosads}At his best, the man is an inept boob offering only rancid arrogance. At his worst, he is a licentious predator threatening the very safety and freedom of the Western Hemisphere. His rhetoric is divisive, his platform is sophomoric, and his failure to articulate any substantive policy agenda is incompatible with a dignified presidency.

In sum, Trump’s campaign is more akin to that of a keg party than a serious bid for the White House.

But simply renouncing Trump will not cure the cancer of Trump. Congressional Republicans would do well to remember why Trump became so popular, even among many of the distinguished right-of-center intelligentsia — namely, because conservative members were not doing their jobs.

I am a conservative. I believe the best governments are small, America’s strongest institutions are its families, and free enterprise is the centerpiece of all vibrant economies. I unblinkingly condemn abortion as murder, viciously defend the broadest possible interpretation of the Second Amendment, and defy state-sponsored attempts to stifle the free exercise of religion and speech.

My beliefs are that of the Great Emancipator; they make up the cornerstone of freedom, as well as the basis for universal equality under the law. It was, after all, Republicans who enacted the Reconstruction Amendments and played a key role in passing the Civil Rights Act of 1964.

Normally, to enshrine these beliefs in the laws of our nation, I invest my votes in the Republican Party. In the past few years, however, I have had a very poor return on my investment; despite controlling both houses of Congress, most governorships, and most state legislatures, incumbent Republicans seem to exist in a perpetual state of emasculation, ready to bow to leftist wishes without even a whisper of genuine protest.

Enter the hero of the story, a scrappy Oompa Loompa from the rough-and-tumble business world of New York City.

In all his glory, here stands a self-described “fighter” purportedly on my team and ready kick the snot out of literally everyone — a demographic that, although admittedly broad, does include those not on my team. Now we’re talking!

Except, of course, the hero is Donald J. Trump, who is in fact a sociopathic man-child incapable of executing the duties of the most powerful office in the world.

Lest the “hero” prevails, the GOP-led Congress should find its backbone and address voters’ primary reason for supporting Trump: the Supreme Court. Specifically, there are three steps Congress could take to curb the Court’s leftist influence.

First, Congress could reduce the number of seats on the Court to five and remove the oldest justices from the bench. This would eliminate the influence of Justices Stephen Breyer, Ruth Bader Ginsburg and Anthony Kennedy, leaving the Court with Justices Samuel Alito, Clarence Thomas, Elena Kagan, Sonia Sotomayor and Chief Justice John Roberts — a solid conservative majority for the next decade.

Although unorthodox, the idea is not without precedent.

In a scheme known as “court packing,” FDR took no issue with augmenting the number of seats on the nation’s highest bench to get the majorities he needed for his progressive agenda. Also, reducing the number of seats would amplify the court’s workload, thereby decreasing the likelihood of a successful writ, which in turn would reinforce the authority of lower courts and decentralize judicial power.

Second, Congress could restrict the court’s appellate jurisdiction, or its authority to decide cases not arising out of original jurisdiction.

Article III, Section 2 of the Constitution grants the Supreme Court appellate jurisdiction in all cases not “affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” That jurisdiction, however, is subject to “such exceptions, and under such regulations as the Congress shall make.”

If the court habitually overreaches — as it frequently does — in cases in which it exercises only appellate jurisdiction, per the Framers’ words, it is incumbent upon Congress to act as a check to such judicial intrusion and strip the court of its appellate authority.

Finally, Congress could amend the oath taken by judges under 5 U.S. Code § 3331 to require judges to execute their duties in a manner consistent with that of constitutional originalism, an interpretive approach advocated by Justices Hugo Black and the late Antonin Scalia.

An oath mandating originalism in judicial decision-making would not be merely symbolic. Should a judge, having taken such an oath, deviate into the fantastical world of the “living constitution,” that judge would have committed perjury of oath — an offense falling under the common-law understanding of “high crimes and misdemeanors,” which is the legal threshold to warrant impeachment under Article II, Section 4 of the Constitution. 

It goes without saying that Congress should ceaselessly stonewall any judicial nominee lacking a demonstrated commitment to originalism, even if that means undermining the very functionality of the court.

These courses of action are not radical, or even new. Each is a legitimate exercise of congressional power and is firmly rooted in the Constitution. Indeed, leftists will convulse over such aggressive conservatism, but if Republican incumbents wish to earn their pay, keep their seats and rebuild the trust of their constituents, it would behoove them to take the gloves off and actually fight for the principles for which they supposedly stand.

Otherwise, Donald Trump is just the beginning.

Wheatley is a writer and law student at the Antonin Scalia Law School in Arlington, Va., and a first lieutenant in the U.S. Army. Email him at tnwheatley@gmail.com and follow him on Twitter @TNWheatley.

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