Elections have consequences, the old saying goes. And one of the greatest consequences of a presidential election is the ability to appoint federal judges, including those who sit on the Supreme Court.
The federal judiciary in modern times has wielded a enormous power to decide “what the law is” in controversial matters involving gay marriage, guns, abortion, racial preferences, political speech, religious freedom, search and seizure, and the scope of federal power.
Because presidents typically nominate federal judges who reflect their own political ideology, their appointments have a profound and long-term effect on how these issues are decided.
{mosads}During President Barack Obama’s eight years in office, he has nominated and the Senate has confirmed 329 federal judges, including two Supreme Court justices, 55 judges on the courts of appeals, and 268 district court judges. That represents almost 40 percent of the federal judiciary—and these are lifetime appointments.
With one existing vacancy on the Supreme Court and two sitting justices in their eighties, judicial appointments were an understandably big issue in the recent election. One in five voters—more than three times the number in the 2008 election—said appointments to the Supreme Court were the “most important factor” in their decision about which presidential candidate to support. Those voters who said the Supreme Court was the most important factor preferred Donald Trump over Hillary Clinton by 57 percent to 40 percent.
The groundswell of Trump support may be explained in part by the perception that liberal policies have been forced on Americans by unelected federal judges who decide cases based on their political ideology rather than the rule of law. While the election may not have been simply a reaction to Obergefell v. Hodges, the Supreme Court’s same-sex marriage decision, it likely reflects the perception shared by a growing number of Americans that federal judges are aiding and abetting liberal activists in their quest to alter fundamental social norms, especially in the areas of sex and the family.
While such controversial changes might occur as the result of fair legislative processes, having them imposed by courts is seen as illegitimate. The rule of law has been reduced to the rule of lawyers.
So what will President Trump’s judiciary look like? He says that he will nominate Supreme Court justices and federal judges who will interpret the Constitution according to its original public meaning, the interpretive approach championed by Justice Scalia.
This means that his judges will approach constitutional decision-making first by interpreting the constitutional text according to its ordinary meaning as understood by those who ratified it and aided by history, precedent, and tradition, and then by applying that meaning to the particular issue before the court.
To be sure, the originalist approach is not infallible—it has its drawbacks and has not always been applied consistently by the judges who use it. But it is preferable to seeing the Constitution as a “living” document, the meaning of which changes over time to fit current political and cultural values.
The originalist approach treats the Constitution as legal text that should be interpreted as we interpret other legal texts, like statutes, contracts, wills, and deeds. It follows the ratified meaning—the only authoritative meaning that was approved by a supermajority of Americans.
And it’s the best approach to preserve the rule of law by constraining judges from smuggling their own political preferences into the law under the guise of constitutional decision-making. Originalist judges at least have to explain why the result they reached is consistent with the constitutional text and original meaning.
Trump says that he will defend our “fundamental rights to free speech, religious liberty, keeping and bearing arms, and all other rights guaranteed . . . in the Bill of Rights and other constitutional provisions.” This seems to exclude rights that don’t appear in the text of the Constitution but have been elevated to constitutional status by the Supreme Court’s open-ended, results-oriented interpretive approach that has given us the rights to abortion and same-sex marriage.
This means that a Trump judiciary will leave decisions on such controversial issues to the political process, to be hammered out in legislatures rather than decided by courts relying on “make-it-up-as-you-go” constitutional standards.
Trump also says that he will respect “the Tenth Amendment guarantee that many areas of governance are left to the people and the States, and are not the role of the federal government to fulfill.”
This suggests that he rightly recognizes that the federal government’s powers are limited, and that state and local governments, which are closer and more accountable to the people, should have greater prerogative in determining the rules by which we live. A Trump judiciary may reinvigorate the constitutional value of federalism as both a check on national power and a means of more effective governing.
Of course, we will have to wait and see who President Trump actually nominates. But there is every reason to believe that a Trump judiciary will be in the mainstream of conservative legal thought and will preserve the rule of law.
Wallace is a law professor at Campbell University School of Law. The views expressed are his own and not attributable to Campbell University. Follow Campbell Law School on Twitter @CampbellLawSBA
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