Democracy Dies in Darkness

Right Turn | Opinion

Why the Supreme Court isn't enough

By Jennifer Rubin

July 22, 2016 at 9:15 AM

A police officer stands in front of the U.S. Supreme Court. (Mark Wilson/Getty Images)

Countless Republicans aware of Donald Trump's many flaws nevertheless say that it is essential to elect him because of the Supreme Court. Here are 10 reasons why they are wrong:

1. The Supreme Court has already established extensive protection for abortion. There was no sign even without the open seat that it was ready to reverse decades of case law. Justice Anthony Kennedy joined the liberals in striking down Texas's abortion clinic regulations. There is no foreseeable chance of reversing abortion precedent.

2. The Supreme Court has already established a right to gay marriage. Again, Kennedy was a fifth vote, so a new conservative justice would not have the ability to reverse the decision. Moreover, now that gay marriage has become legal everywhere and Western Civilization has not ended, does anyone suppose there would be much public support in many states to undo those relationships? Remember, few people think Trump really opposes gay marriage. It was a nonexistent topic at the convention.

3. If a president decides, for example, to insist that the military commit war crimes, the Supreme Court is not going to hold him back. Utter disrespect for the concept of limited government and disdain for judges who don't decide things in his favor is a much more serious problem.

4. The Supreme Court is not irreparably changed with one new justice. If Trump — heaven forbid — were elected and named one justice to the court, his term could prove so ruinous that he ushers in decades of Democratic rule, which would put many more liberal judges on the Supreme Court and lower courts.

5. One could easily imagine Trump "trading" Democratic support for his wall for a less conservative justice on the court. Remember, he says that everything is up for negotiation.

6. In the grand scheme of things, wouldn't Russia's invasion of a few Baltic states be worse for America and the world than a single conservative justice, who would be outvoted in many key cases anyway?

7. Trump believes in executive power, to put it mildly. Don't you suppose he would choose justices who would give him ample latitude to rule by executive decree?

8. Is a single justice worth an economic plan that would send the country tumbling into yet another recession? An increase in the suffering of those Trump has promised to help might result in a backlash against the GOP that would make Herbert Hoover look like a superb recruiter for the GOP.

9. Is a single justice worth an increase in the racial, ethnic and class antagonisms that Trump surely would usher in? Racial division, economic grievances and urban violence are alarming as is. Trump surely would bring out the worst in everyone. He always does.

10. Second Amendment rights are not at risk so long as the federal government and states pass legislation that respects the right to bear arms. Republicans would do far more for the rights of peaceful gun owners by ensuring that Republicans are elected to the House, Senate and state legislatures.

In the absence of presidential victories, the GOP has become obsessed with the notion that the Supreme Court will save us from the bad judgment of liberals. In fact, the ability of the court to restrict mischievous legislation (e.g. Obamacare) is overstated. The court's decades-long movement for extending personal rights has made many of the hot-button social issues effectively moot. Betting on nomination and confirmation (anyone think the Dems wouldn't filibuster a Scalia clone?) who might swing a case now and then strikes us as a particularly weak rationale for picking a wholly unqualified, ignorant, narcissistic and racist man for president, one who has little respect for the Constitution anyway.


Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.

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