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After Monday, October 26, President Donald Trump’s most profound effect on the Constitution may no longer be his fight against the Russia collusion probe or his acquittal for impeachment.
As I argue in my book “Defender-in-Chief,” Trump not only raised the Constitution as a shield against assaults on the legitimacy of his presidency.
In both cases, he also defended the Founders’ vision of the executive branch – one that vests the power to enforce the law and protect the national security in the hands of a single, elected president – against the progressive idea of government as the preserve of unelected experts who should wield their professional judgment free from political control.
But now, Trump has had a more direct impact on our political future by appointing Amy Coney Barrett to the Supreme Court. It will not be, as Democrats fear and Republicans hope, due to her immediate influence on urgent issues such as the constitutionality of ObamaCare and 2020 election disputes arising out of battleground states. These questions will fade.
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Texas v. California, which the Justices will hear the second week of November, presents a technical legal issue (severability) with minor importance in the constitutional scheme of things.
Even if the Court strikes down ObamaCare’s mandate that everyone buy health insurance, the law’s larger elements, such as vast new federal spending and intensive regulation of the health care industry, will remain.
Election cases may seem more imperative. So far, the Supreme Court has placed a light hand on the shenanigans in the battleground states.
It has passed twice on reviewing the Pennsylvania Supreme Court’s use of the coronavirus emergency to arbitrarily change the date by which mail-in ballots must arrive and how officials are to verify them.
While the Court has passively sat by due to Chief Justice John Roberts’ choice to vote with the three liberal Justices (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan) to block review, it cannot avoid the important constitutional question for long.
Article I of the Constitution specifically vests in the state legislatures the right to set the “Times, Places and Manner of holding Elections” and Article II gives the state legislatures alone the right to decide how to appoint presidential electors.
With Justice Barrett breaking the 4-4 tie, the Court can address whether the interference of judges in Pennsylvania and her sister states, even under the guise of an emergency, violates the state legislatures’ control over the presidential election.
Nevertheless, these election cases will matter this year but perhaps no farther. They arise only when the American people cannot make up their minds and elections are so close.
In good health, Justice Barrett may sit on the Supreme Court in the year 2050, when the elections of 2016 and 2020 fade from memory.
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Few today are fighting over (or even remember) whether third-party candidate Ross Perot entered the 1992 and 1996 races out of spite and thereby threw both elections to Bill Clinton.
Instead, Barrett will have the far more profound influence of addressing controversies that have divided our politics for decades and perhaps even beginning to settle fundamental questions that may provide a structure for the future.
The obvious issue surrounding Barrett’s nomination, and that of every Supreme Court nominee since Robert Bork in 1987, is abortion.
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Abortion has driven the escalation of politics because it removed one of the nation’s most important social questions from the arena of elections and legislatures and transferred it to the docket of the Supreme Court.
Voters who care about abortion can now change policy only by influencing the judges on the federal courts. Overturning Roe v. Wade would not only reverse a poorly reasoned decision, but it could set the nation on a better course.
Reversing Roe v. Wade would not end abortion in the nation, but only return the question to Congress and the nation’s statehouses. States could choose different abortion regimes, just as they do with crime and other life and death questions, and people can move to live in states whose policies they like.
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Barrett may prove just as important in finding a path forward for the future. Perhaps the greatest conflict besetting the Court today is the conflict between liberty and equality.
Our Bill of Rights recognizes the right of individuals to freedom of speech, press, assembly, and religion, among others. These rights have steadily come into conflict with the efforts of state and local governments to extend equality beyond race, gender, and religion to new categories such as sexual orientation and the transgender.
Fulton v. City of Philadelphia (there goes Pennsylvania again, causing trouble at the Supreme Court), to be argued November 4, illustrates the conflict of ideals. Philadelphia prohibited Catholic Social Services from providing foster homes for orphaned, abused, or neglected children because it would not place children with gay couples – contrary to the city’s non-discrimination policy.
Justice Barrett could provide a fifth or even sixth vote on the Court to recognizing that the Bill of Rights fundamental protections for liberty supersede more recent, popular efforts to mandate equality.
If she were to demand that the courts protect the right of speech and religion above all, Barrett would make her most profound contribution to the Supreme Court and the Constitution.
Many conservatives overcame their wariness toward Trump four years ago when he released his list of potential Supreme Court nominees. Unlike Republican presidents past, Trump did not include stealth nominees on the order of David Souter or Anthony Kennedy, who became critical votes to discover rights to abortion or gay marriage in the Constitution.
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In nominating Barrett to the Supreme Court, he kept his promise by choosing an undaunted originalist – someone who interprets the Constitution based on the understanding held by its ratifiers.
Trump’s most profound effect on the Constitution will come when she and the other Trump Justices apply that originalism to the questions of liberty and equality.
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