Why the Supreme Court Matters More to Republicans than Trump

Conservative justices might be the party’s final bulwark against a changing electoral landscape.

Jon Elswick / AP

John Boehner might be the last Republican in the country you’d expect to stick with Donald Trump right about now.

The ousted House speaker represents exactly the kind of insider, Chamber of Commerce Republicanism that Trump and his supporters claim to abhor—pro-immigration, pro-trade, pro-lobbyist. The same insurgency that propelled Trump to the GOP nomination helped force Boehner out of office. And with no election of his own to win, Boehner cares as much about mowing his lawn as he does about how his party’s base would react if he renounced the man they chose for president.

Yet when it comes to Trump, Boehner’s position is no different than his clearly conflicted successor as speaker, Paul Ryan, or than the equally torn conservative rabble-rouser he once labeled “Lucifer in the flesh,” Ted Cruz. On November 8, all three of them plan to hold their nose, close their eyes, and vote for Trump.

Boehner confirmed as much during an interview Wednesday night on Fox News—his first television sit-down since he left office a little over a year ago. He offered no defense of the video in which Trump brags about kissing and groping women without their consent. In fact, he said he was “disgusted” by it and even wondered why more Americans weren’t also disgusted.

So why is the retired speaker still voting for Trump? For the same reason as Cruz—the Supreme Court.

“In my view, the election is pretty simple,” Boehner told Brit Hume.

The legislative process, the political process, is at a standstill and will be regardless of who wins. The only thing that really matters over the next four years or eight years is who is going to appoint the next Supreme Court nominees.

Conservatives have prized the Supreme Court as much if not more than Congress and the presidency for decades. But the degree to which it is driving activists and party leaders this year is without precedent. In the Senate, Majority Leader Mitch McConnell has kept the late Justice Antonin Scalia’s seat open for an astonishing eight months and counting just so that a Republican president—any Republican—might have the opportunity to fill it. And it’s not just Scalia. Justices Ruth Bader Ginsburg (age 83), Anthony Kennedy (80), and Stephen Breyer (78) could all retire during the next president’s term.

Yet there are still broader reasons why an obsession with the Court is prompting Republicans like McConnell, Ryan, and Cruz to continue backing a candidate they plainly detest. (As a former golfing buddy of Trump’s, Boehner might actually like him personally, if not politically.) Boehner pointed to one explanation that has gotten only scant attention during this election: Congressional gridlock makes the Supreme Court more important, not less. “More and more issues, because they cant be dealt with legislatively, are going to be dealt with by the court system,” the former speaker explained. “So I believe that Donald Trump’s view of who these judges should be is much closer to where I am than the judges Hillary Clinton would appoint.”

Boehner’s view assumes that neither Trump nor Clinton would be able to jumpstart the legislative process. There’s reason to believe that will be the case. Clinton would need the equivalent of an electoral tidal wave for Democrats to win back both the House and the Senate, and while Trump’s collapse in the last two weeks increases the odds of that happening, it remains unlikely. And even if Trump were to win alongside Republican majorities in Congress, Democrats would still be able to block major legislative initiatives in the Senate via the filibuster—something Republicans could not do for much of Obama’s first two years in office. The deep polarization of the electorate along economic, racial, and ideological lines will make bipartisan achievements difficult, although not impossible.

“The biggest impact any president can have on American society and on the American economy is who’s on that court,” Boehner said.

Already, congressional inaction has forced the Supreme Court to weigh in on major health-care and immigration cases. Stymied in their efforts to repeal Obamacare through legislation, Republicans turned to the courts for help—and largely failed. And when Democrats could not steer an immigration-reform bill through to passage, President Obama took executive action to accomplish some of the same goals. Republicans sued, and a deadlocked Supreme Court declined to reinstate the administration’s policy. Conservatives have traditionally railed against “judicial activism” and campaigned on the idea that judges should defer to the will of the people as expressed through the democratic process. But lacking sufficient power in the other two branches of government, they have increasingly turned to a friendly Supreme Court for help.

And for 25 years before Scalia’s death in February, the justices have, on balance, been friendly to the GOP. Republicans haven’t had the presidency or Congress for much of that time, but the Court has tilted conservative. And as they face an uncertain future in which demographic trends will make the nation younger, more diverse, and thus more favorable to Democrats, conservatives view the Supreme Court as a final bulwark they must defend at almost any cost. “We are only one justice away from losing our most basic rights, and the next president will appoint as many as four new justices,” Cruz wrote in the Facebook post announcing his belated endorsement of Trump. The “basic rights” he was referencing include the right to bear arms, religious liberty, and free speech—as conservatives see them. And of course, the conservative dream of overturning Roe v. Wade would die for another decade or more if the court shifts left.

Yet what Republicans won’t say as openly is that they are just one justice away from losing their most durable vestige of political power. The appointment of young, conservative justices to replace Scalia and Ginsburg (and maybe even Kennedy and Breyer) would clinch the court for another generation and protect against the loss of fleeting congressional majorities and even the White House in the years to come. Cruz acknowledged that there is little reason to trust that Trump would appoint one of the 21 potential justices on his list, given that he has reversed himself on so many other issues. But the fact that there is even a chance that he would keep his commitment is reason enough for Republican leaders and retirees alike to support him—scandals, insults, hypocrisies, and all.