Conservatives have been uncomfortable, to say the least, with Donald Trump since Day One. For many reasons, we’ve said, this can’t end well. And we may still be proven right.
But – it’s hard to argue with results. Rhetoric is one thing — and Trump says something every day that makes conservatives cringe with embarrassment if not exasperation — but he has governed as a middle-of-the-road, moderately-conservative Republican, hysterical protestations from the Democrats notwithstanding.
Especially when it comes to the appointment of judges, conservatives can’t complain, because he is reshaping the judiciary almost exactly as conservatives have been urging for at least 50 years. It’s almost funny to watch leftists’ heads explode when you say that, not least of all because we understand that this is actually going to cement many liberal accomplishments into the structure of American society, much to the chagrin of the right.
The reason for that is stare decisis, the legal doctrine which means, roughly, “it is decided”. In the Anglo-American legal tradition, great deference is given to past decisions of the courts, even if those decisions are not very well reasoned and/or in line with the judge’s own preferences. A prudent judge will always attempt to find precedents in the case law to demonstrate that his reasoning is in line with the thinking and actions of other courts.
This does NOT mean that past decisions can’t be overturned, it just means that, if you’re going to do it, there has to be a very, very good reason. Perhaps the best-known example is Brown v. Board of Education, in which the Supreme Court in 1954 overturned Plessy v. Ferguson, decided in 1896, which allowed separate accommodations for whites and blacks as long as they were “equal.” A large part of the reasoning that went into overturning Plessy hinged on the fact that, in the real world, accommodations — in this case, schools — were manifestly unequal. Reality trumps theory every time. The Constitution requires equal protection under the law, the reality was patently unconstitutional, and a 9-0 vote by the Court left no question about it. A decision that was, perhaps, defensible in 1896 couldn’t stand the test of time and was justly overturned.
And released the furies. The next 20 years was a turbulent and dangerous time as the implications of Brown and companion Supreme Court decisions played out. School desegregation, white flight, freedom riders, police brutality, race riots, affirmative action; as we tried to come to grips with the legacy of slavery and racism, the fear that the nation was tearing itself apart was palpable. We’re still repairing the damage, with bitter-enders on both sides refusing to give up a fight that was settled long ago.
Which brings us back to another aspect of stare decisis, a corollary if you like: leave well enough alone. A prudent judge – and this is true of conservatives in particular, with their concern for the existential dangers of revolution, and the need to maintain ordered liberty – will think very carefully about upending the established order without having a compelling reason that leaves no other choice. Is it really worth releasing the furies once again?
This is why I suspect that liberals have less to fear from a solidly-conservative Supreme Court than they think. Because it’s often not worth releasing the furies, they won’t go picking fights, seeking to re-open settled issues, even some that deeply offend conservatives.
There is one area that I’ll be watching with great interest, though. Conservatives argue convincingly that the federal courts have overreached for decades, involving themselves in issues which they have no business addressing. The Tenth Amendment states that the federal government’s powers are limited to those specifically granted in the Constitution, with all other powers belonging to the states or to the people. Thus, on abortion for example, conservatives ask, where does the Constitution grant the federal government any authority to regulate it? The plain and simple answer is, on any honest reading of the document, it doesn’t. The problem with Roe v Wade from a Constitutional standpoint (according to conservatives) is that the federal courts should have never gotten involved in the first place. It’s an issue that belongs to the states, and the states alone. If Roe is reversed, it will be on this basis.
This is the big change I expect. The Supreme Court will, out of renewed respect for the Tenth Amendment, forbid the federal government from intervening in issues where it doesn’t have the explicit authority to do so, and will guide the lower courts to stay out of issues that legitimately belong to the legislative branch. It’s a humbler role for the courts, and one better suited for our grand experiment in self-government.
Kenneth D. Gough of Elizabethton is a semi-retired businessman.