President TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE will clearly replace Supreme Court Justice Anthony Kennedy with a conservative who appeals to the president’s base. The real question is what kind of conservative justice he nominates.
There are two basic types of conservative justices. The first defers to precedent called stare decisis. Such a justice might say, “I would have decided Roe v. Wade differently if I had been a justice back in 1973, but since that decision has been on the books for 45 years, I will not overturn it.” Such a justice might say something similar about more recent decisions concerning gay rights and gay marriage. That is one kind of conservative justice the president might pick.
If the president were to nominate a conservative who rejects stare decisis, the court would then have three factions. The conservatives would be divided into two camps, one that followed precedent and the other that did not. (Obviously these would be matters of degree, since no one always follows precedent and no one always ignores it.) These conservatives might vote very differently on particular cases.
The third faction would be comprised of the court’s current liberals who likely would vote along with those conservatives who supported stare decisis, to ensure that old precedents are not easily overruled. President Trump would be well advised to select a justice who believes in precedent and who would not overrule Roe v. Wade and gay rights cases. Overruling Roe v. Wade would end up hurting conservatives in national elections.
The majority of Americans strongly support a woman’s right to choose, perhaps with some limitations. Because of Roe v. Wade, elections are not referenda on this important right. For that reason, many moderately conservative women feel comfortable voting for a Republican president and senators. But if these moderate conservatives came to believe that a vote for Republicans is a vote against the right of their daughter, sister or niece to obtain a necessary abortion, they might well change their vote.
This may not be as true for centrist Republicans who support gay rights and gay marriage. But many such Republicans do support these rights, and the fear of losing them might turn them against the Republican Party. President Trump also will be better off with a united conservative group on the high court, one that is not divided by their views on precedent.
Finally, true conservatives should place considerable importance on precedent, because conservatism espouses stability, respect for the past, deference and judicial restraint. Freewheeling judges who disregard precedent can quickly become judicial activists who substitute their own views for those of the executive, legislature and the Constitution.
This is an important time for the Supreme Court. It is quickly becoming a politicized institution, and many of its votes can be predicted by looking at party affiliation. That was certainly true of Bush v. Gore, in which the justices voted their politics rather than the constitutional views they had previously espoused. Partisan decisions diminish the power of the court.
As the Federalist Papers observed, the Supreme Court is the “least dangerous branch” of our government because it has neither the purse nor the sword with which to enforce its decrees. It depends entirely on its credibility and the trust placed in it by American citizens.
The appointment of a Supreme Court justice is one of the most important functions a president can perform. The Senate behaved abysmally and, in my view unconstitutionally, when it refused to consider President Obama’s nomination of Merrick GarlandMerrick GarlandDemocrats demand more action from feds on unruly airline passengers Lawmakers say police reform talks are over Supreme Court low on political standing MORE, a brilliant centrist judge.
Senate Republican leaders said they would refuse to consider and process any nomination regardless of its merits that President Obama submitted near the end of his term. The Democrats may well try to play the same game, but they don’t have the votes to carry it out. They should still rigorously question any Supreme Court nominee in order to determine his or her views on the importance of precedent.
President Trump will get his nomination through the Senate if he picks from the list provided to him by the Federalist Society. The judges on this list are all conservatives with high levels of qualification. But he can act as a statesman, rather than a politician, if he selects a nominee who strongly believes in following precedent, especially in cases where American citizens have come to rely on prior decisions in regulating their lives.
Let the president and the Senate perform their constitutional duties, and let the public evaluate them on how well they perform these duties. This is the ultimate check and balance that our Constitution demands.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against Impeaching Trump.” He is on Twitter @AlanDersh and Facebook @AlanMDershowitz.