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.