Is Donald Trump a Burkean? Would Russell Kirk vote for him for president? Can a paleoconservative legal scholar imagine any benefit to a Trump presidency?
Of course, the neoconservatives are piling on Trump. Most notable was National Review’s January 21 issue, “Against Trump.” “Trump,” say the editors, “is a philosophically unmoored political opportunist who would trash the broad conservative ideological consensus within the GOP in favor of a free-floating populism with strong-man overtones.” Moreover, he “has shown no interest in limiting government, in reforming entitlements, or in the Constitution.” If these charges were true, it would be difficult for anyone who cherishes deeply moored conservative principles to support Trump. Our earliest and greatest founders maintained that there can be no order without law, no law without morality, and no morality without religion. Kirk and Burke believed that. Does Trump?
Roe v. Wade was one of the Supreme Court’s greatest mistakes, an unpardonable usurpation of the legislative power that belongs to the American people. In today’s political environment, one can gauge where a candidate stands on this conservative view of law, morality, and religion by examining where he stands on abortion. Reportedly, Trump once favored legalizing even partial-birth abortion, but more recently he has firmly and explicitly committed himself to a pro-life position. On the 43rd anniversary of Roe, Trump wrote an editorial for the Washington Examiner, declaring that he’d had a conversion experience and is now “pro-life.” As a builder, he knows that proper engineering is essential to the erection of sound and beautiful structures; similarly, it is important to follow “a set of rules that have worked since our Founding” if the United States is to be governed properly.
“One of these rules,” he stated, was that “we, as Americans, revere life and have done so since our Founders made it the first, and most important, of our ‘unalienable’ rights.” He then condemned the Court’s decision in Roe, which was improperly spun out of penumbras and emanations from the First, Fourth, Fifth, and Ninth Amendments. Trump’s editorial stated that the Court “in 1973 based its decision on imagining rights and liberties in the Constitution that are nowhere to be found.” Furthermore, as if “our slide to a culture of death were not enough, the 1973 decision became a landmark decision demonstrating the utter contempt the court had for federalism and the 10th Amendment.” Trump also recognizes Roe as an assault on federalism: It “gave the Court an excuse to dismantle the decisions of state legislatures and the votes of the people. This is a pattern that the Court has repeated over and over again since that decision.”
Trump concluded by saying that “A culture of life is too important to let slip away for convenience or political correctness.”
With Antonin Scalia’s death, there is now a vacancy on the Supreme Court, and it is reasonable to conclude that over the next eight years two or three of the other justices (Ginsburg, Breyer, and Kennedy are the most likely) will choose to retire, giving the next president the power to shape the course of constitutional jurisprudence for the next few decades.
So what is Trump likely to do? In August, he declared that his older sister, Maryanne Trump Barry, a Republican nominated by Ronald Reagan to the U.S. District Court for the District of New Jersey and, later, by President Clinton to the U.S. Court of Appeals for the Third Circuit, where she now sits as a senior judge, was “great,” “fantastic,” and that “she would be phenomenal” as a justice. This troubled Frank Cannon, who wrote in The American Spectator on December 23 that, in her judicial opinions, Barry had expressed “a full-throated defense for legalizing infanticide.” This might have been a bit hyperbolic, but Barry did write an opinion in support of partial-birth abortion. Trump may be pro-life, but it does not appear that his sister is, although, to be charitable, courts of appeals must follow the Supreme Court, and at the time Barry was writing she may have been required, under Supreme Court precedent, to opine as she did. More importantly, it is highly unlikely that Barry, who would be almost 80 years old when a President Trump assumed office, would be his choice. A president would be inclined to want to leave a more permanent mark on the Court by his appointments.
Whom would Trump nominate, then? As of this writing, he has not suggested any other names, but his comments on two of the sitting justices offer hope, while his comments on a third provide cause for concern.
In December, at a forum hosted by South Carolina Attorney General Alan Wilson, Trump stated that his favorite Supreme Court Justice is Clarence Thomas, because he is “strong and consistent.” He got that one right. Of all of the current justices, Thomas is the most reliable adherent to a conservative jurisprudential philosophy, one that holds that the Constitution ought to be interpreted in the manner that it was understood by its Framers and ratifiers. Thomas is thus the most consistent “originalist” and champion of federalism, the notion that the federal government ought to be limited to its enumerated powers, and that other matters should be left, per the Tenth Amendment, to the states. Thomas is also the Court’s greatest advocate of a color-blind Constitution, one that refuses to make invidious distinctions based on race. If Trump wants to appoint more judges like Justice Thomas to the Court, does that suggest he shares Thomas’s essentially conservative jurisprudence?
In that same South Carolina forum, Trump blasted Chief Justice John Roberts for his two decisions in which he upheld President Obama’s signature piece of legislation, the Patient Protection and Affordable Care Act (popularly known as ObamaCare). In the first of those decisions Roberts acknowledged that Congress’s power to regulate commerce could not support Obama Care, yet insisted that Congress’s power to levy taxes could. (If this were true, the Tenth Amendment would essentially be meaningless.) Then, in a second, much more technical decision, Roberts’s opinion for the majority rewrote and reinterpreted the ObamaCare statute in order for it to pass constitutional muster: He read the word state to mean “state and federal,” another act of obvious judicial legerdemain.
Thus, it is clear that Trump got it right when, in South Carolina, he said that “Justice Roberts really let us down.” Trump added that what Roberts “did with Obama Care was disgraceful, and I think he did that because he wanted to be popular inside the Beltway.”
In the days before Roberts made his first decision in support of ObamaCare, there were reports that the Chief Justice was wary of plunging the Court into another controversy such as it experienced in 2000, when, in Bush v. Gore, the Court was vilified for, in effect, selecting a Republican president. The criticism of Bush v. Gore, as I have argued in these pages, was misplaced, but one could almost understand why Roberts, with a presidential election coming up, decided that it was appropriate to leave the question of approval of the PPACA to the American people, who could have terminated the presidency of Mr. Obama in 2012. They did not, however, and Roberts’s questionable reading of the Constitution is now an uncomfortable piece of jurisprudence, which Trump properly condemns.
Trump’s views on Roberts and Thomas, which are not widely shared with or understood by the public, demonstrate a sophistication that might not generally be attributed to The Donald. Unfortunately, that sophistication may not always be present, and there is some reason to think it was absent when Mr. Trump leveled some remarks at Justice Scalia, after the Court heard arguments in Fisher v. University of Texas, a case which challenges the University of Texas’s affirmative-action policies. The university argued, essentially, that all students benefit when the school seeks to enroll a student body with a racial composition that mirrors that of the general public.
Some social scientists, however, argue convincingly that since the academic qualifications of some minority students (especially blacks and Hispanics) are, for whatever reason, dramatically lower on average than those of nonminorities and Asian-Americans, placing blacks and Hispanics in an academic environment for which they are unprepared is likely to result in frustration and failure. Scholars refer to this phenomenon as “mismatch effects,” and this terminology is associated most prominently with the work of journalist Stuart Taylor, Jr., and political scientist Richard Sander, who filed an amicus brief before the Supreme Court in Fisher. They contend that minority students might be more likely to flourish if they are enrolled in less elite institutions where they would be competing with students whose academic abilities are similar to theirs.
Seeking to explore this “mismatch” theory with counsel for the University of Texas, during the oral argument in Fisher Scalia stated,
There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less—a slower track school where they do well.
Justice Scalia added, “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas.”
Following these remarks, the media exploded at Scalia, accusing him of blatant racism. Trump joined in the chorus. On December 13, CNN reported that Trump had said of Scalia’s comments, “I thought it was very tough to the African-American community, actually.” “I don’t like what he said,” Trump continued, “I’m going ‘Whoa.’” Trump has also indicated repeatedly that he is “fine with affirmative action.” Given his reaction to Scalia’s merely factual inquiry, this suggests Trump is susceptible to the same sort of political correctness that he so often decries in others. Whether Trump “likes” the arguments of the mismatch theorists is irrelevant.
On the other hand, one day after Justice Scalia’s sudden death in February, Trump issued a statement declaring that
Justice Scalia was a remarkable person and a brilliant Supreme Court Justice, one of the best of all time. . . . He was a Justice who did not believe in legislating from the bench and he is a person whom I held in the highest regard and will always greatly respect his intelligence and conviction to uphold the Constitution of our country.
On balance, therefore, Donald Trump appears to hold generally to the Constitution’s core principles, particularly when he issues a reflective statement and is not speaking off the cuff. Repeatedly, he has indicated his commitment to the Constitution’s allocation of the primary legislative power to the states and the people thereof, and to the conservative principle that Courts should not act as lawmakers.