"The Supreme Court: It's what it's all about," said Donald Trump, the Republican nominee for president, in his own awkward fashion during last night's debate with his Democratic opponent Hillary Clinton in Las Vegas.
He's not wrong. Justice Antonin Scalia's death in February placed the Court's future front and center in the presidential race. Commentators frequently note the next president will likely appoint two or three justices—a morbid but accurate statement, especially if he or she is re-elected. What’s rarely appreciated is how historic that shift will be.
Consider this: Because Jimmy Carter's term saw no vacancies on the high court, Republican presidents were able to shape the Court's bench for most of the late 20th century. Between Lyndon B. Johnson’s nomination of Thurgood Marshall in 1967 and Bill Clinton’s choice of Ruth Bader Ginsburg in 1993, Republican presidents appointed 10 justices to the Supreme Court.
Not all of the Republican choices were stalwart conservatives. But most of them were, giving the Supreme Court a decidedly conservative outlook until Scalia’s death left it equally divided between its conservative and liberal wings. If Hillary Clinton wins, her appointments could produce the first liberal Supreme Court in almost 50 years.
Clinton did not explicitly address this possibility last night. But she tied the Court’s ideological makeup to her broader vision of the country’s future. “What kind of opportunities will we provide for our citizens? What kind of rights will Americans have?” she said during the opening segment. “I feel strongly that the Supreme Court needs to stand on the side of the American people, not on the side of the powerful corporations and the wealthy.”
“I have major disagreements with my opponent about these issues and others that will be before the Supreme Court,” she added, outlining a largely generic liberal stance. “But I feel that at this point in our country's history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace, that we stand up and basically say: The Supreme Court should represent all of us.”
When Wallace turned to Trump, the businessman gave rambling, superficial answers on what should be any Republican candidate’s safest ground. Instead of laying out his vision for the Court, it seemed like Trump tried to say what he thought his conservative supporters would want to hear. His first instinct when asked about the Court’s role in America was to denounce Justice Ruth Bader Ginsburg, a liberal icon who had sharply criticized him in July.
“Something happened recently where Justice Ginsburg made some very, very inappropriate statements toward me and toward a tremendous number of people, many, many millions of people that I represent,” he said. “And she was forced to apologize, and apologize she did. But these were statements that should never, ever have been made.” (While Ginsburg did criticize Trump, she made no comments about his supporters.)
Only then did Trump pivot to gun rights, where he attempted to throw some red meat to his base. “We need a Supreme Court that in my opinion is going to uphold the Second Amendment, and all amendments, but the Second Amendment, which is under absolute siege,” he explained. “I believe if my opponent should win this race, which I truly don't think will happen, we will have a Second Amendment which will be a very, very small replica of what it is right now. But I feel that it's absolutely important that we uphold, because of the fact that it is under such trauma.”
Vague incoherence is unusual for Republican candidates on constitutional issues. Movement conservatives like Ted Cruz and Marco Rubio can warn about liberals appointing activist judges and pledge adherence to the Founders’ original vision for the Constitution with casual ease. But Trump is not from that world. He instead speaks of conservative legal thought like a foreign-exchange student. Most of the correct nouns and verbs are there, but fluency eludes him.
“I feel that the justices that I am going to appoint—and I've named 20 of them—the justices that I'm going to appoint will be pro-life,” he said, referring to the lists of judges he’s published to woo conservative skeptics. “They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they're people of tremendous respect. They will interpret the Constitution the way the founders wanted it interpreted. And I believe that's very, very important.”
During one revealing exchange, Wallace asked Trump directly if he wants the Court to overturn Roe v. Wade.
“Well, if that would happen, because I am pro-life, and I will be appointing pro-life judges, I would think that that will go back to the individual states,” Trump replied.
Wallace asked for a more specific answer. “If they overturned it, it will go back to the states,” Trump said, describing an outcome instead of his true preference.
“But what I'm asking you, sir, is—you just said you want to see the court protect the Second Amendment,” Wallace said. “Do you want to see the court overturn Roe v. Wade?”
“Well, if we put another two or perhaps three justices on, that's really what's going to be—that will happen,” Trump attempted to explain. “And that'll happen automatically, in my opinion, because I am putting pro-life justices on the court. I will say this: It will go back to the states, and the states will then make a determination.” Wallace gave up and turned to Clinton, who delivered a strong defense of abortion rights.
Contrast that evasiveness with George W. Bush’s answer to a similar question during the first 2000 presidential debate. Asked then whether he would appoint justices who would overturn Roe, Bush instead assured Americans he would have “no litmus test on that issue or any other issue” and that he would “put competent judges on the bench.”
But he also clearly signaled his ideological preferences to his supporters. “I believe that the judges ought not to take the place of the legislative branch of government,” he added. “They shouldn't misuse their bench. I don't believe in liberal activist judges. I believe in strict constructionists. Those are the kind of judges I will appoint.”
Trump’s unfamiliarity with basic conservative legal stances also cost him at a crucial moment. At one point, Wallace asked Clinton about D.C. v. Heller and whether she still thought the Supreme Court was still “wrong on the Second Amendment.” Clinton began by saying she believed in “reasonable regulation” on gun ownership, then addressed the case itself.
“You mentioned the Heller decision,” she said. “And what I was saying that you referenced, Chris, was that I disagreed with the way the court applied the Second Amendment in that case, because what the District of Columbia was trying to do was to protect toddlers from guns and so they wanted people with guns to safely store them. And the court didn't accept that reasonable regulation, but they've accepted many others. So I see no conflict between saving people's lives and defending the Second Amendment.”
Clinton’s description of Heller wasn’t quite accurate. In the 2008 case, the Court struck down the District of Columbia’s handgun ban and found an individual right to bear arms in the Second Amendment for the first time. The plaintiff, Dick Heller, was a 66-year-old retired security guard who had denied a permit to keep a handgun in his home for personal protection. While the justices briefly noted the risk to children during oral arguments and Justice Stephen Breyer mentioned it in his dissent, protecting children was neither central to the case nor the primary focus of the regulations it struck down.
Right-wing pundits howled on Twitter about Clinton’s description of one of the conservative legal movement’s most cherished decisions. But Trump appeared not to notice, and made no substantive defense of it when Wallace turned to him.
“Well, the D.C. vs. Heller decision was very strongly—and she was extremely angry about it. I watched. I mean, she was very, very angry when upheld. And Justice Scalia was so involved,” he replied. (Scalia authored the opinion.) “And it was a well-crafted decision. But Hillary was extremely upset, extremely angry. And people that believe in the Second Amendment and believe in it very strongly were very upset with what she had to say.”
After the Supreme Court segment ended, the debate turned to immigration, a subject about which Trump actually seemed to care.