The best argument for many regular Republicans to vote for Donald Trump in 2016 was the Supreme Court, and this argument looks better and better as time passes. The Democrats are in a highly precarious position when it comes to the Supreme Court, as Ruth Bader Ginsburg is 85 and Stephen Breyer is turning 80 this year. They are the justices most likely to retire or die next, meaning that the Democrats need to win the next presidential election to prevent a court transformation. If they lose, Ruth Bader Ginsburg will have to stay on the court until the age of 91 to avoid having a conservative successor, beating the record for oldest justice set by Oliver Wendell Holmes Jr., who retired at the age of 90. In regards to the question I posed for the title, Trump’s influence has already surpassed that of Jimmy Carter, who nominated and confirmed no justices. As I see it, Trump has the potential to reach the level of FDR. No, he won’t nominate and confirm nine justices, but the impact of his picks may be the same on an ideological level. The nightmare the Democrats will be facing if Trump is reelected, however, is likely the very nightmare conservatives faced after FDR was reelected not once, but three times.
When Franklin D. Roosevelt first took office, the court had four justices (Willis Van Devanter, James McReynolds, George Sutherland, and Pierce Butler) with a restrictive reading of the Commerce Clause and a belief in the existence of an implied “liberty of contract” in the Constitution, known popularly as the “Four Horsemen”. Three justices (Louis Brandeis, Harlan F. Stone, and Benjamin Cardozo) had expansive interpretations of the Commerce Clause and did not believe in the “liberty of contract”, known popularly as the “Three Musketeers”. These two factions battled over whether New Deal programs were constitutional or not, with Chief Justice Charles Evans Hughes and Owen Roberts being the swing votes. Roberts was often convinced to side with the Four Horsemen, giving them their needed fifth vote. By FDR’s death in 1945, only Musketeer and now Chief Justice Harlan F. Stone and Roberts remained. In total, FDR had managed to nominate and confirm nine justices on the Supreme Court (James F. Byrnes resigned the court after a short time, and Stone was promoted to Chief Justice). The Four Horsemen had been replaced by reliable supporters of the New Deal, including Hugo Black and James F. Byrnes, who had shepherded the New Deal through the Senate. Roberts was now the most conservative member of the court, with FDR having placed in reliable justices to uphold just about any use of the Commerce Clause. Although FDR had lost his “court packing” battle, which some commentators with a historical knowledge deficiency think is a good idea to repeat, he won the Supreme Court war. Perhaps the best example of the solidification of this victory is Wickard v. Filburn (1942), in which the court ruled unanimously that a farmer growing additional crops beyond government allowances for his livestock only constituted “interstate commerce”.
Since the court had gifted Congress such an expansive definition with Filburn, it seemed that nothing would be ruled as an excess of Commerce Clause powers and wasn’t…until U.S. v. Lopez in 1995, and it was a 5-4 vote about the banning of possession of handguns near schools. The “liberty of contract” doctrine has not returned and may never, even with a conservative court as this doctrine has its critics on the right. This is not to say that no conservatives emerged on the court…on other issues very definitive wings arose: during the 1950s and 1960s Chief Justice Warren along with Justices Brennan and Douglas could be counted as the solid liberal wing of the court, while the conservative wing was led by Justices Felix Frankfurter and John Marshall Harlan II, with Harlan often being the court’s only dissenter after Frankfurter’s retirement in 1962. Conservative power did not start to truly reemerge on the court until the 1980s. Although the confirmation of Brett Kavanaugh will only truly be a rightward shift of the court on social issues as Kennedy proved conservative on other issues, it could be enough to overturn Roe v. Wade should its validity come into question (spoilers: it will). Now the power may be decidedly shifting, and if Trump wins another term, he will certainly be a transformational president for the Supreme Court, and it would be on the scale of FDR should he nominate and confirm replacements for Ginsburg and Breyer. The United States Supreme Court could potentially have at least a half-century of dominating conservative jurisprudence ahead of it, much like the Supreme Court had over a half-century of liberal jurisprudence. This thought is unbearable for today’s Democrats, and they will do all in their power to stop it.
U.S. v. Lopez, 514 U.S. 549 (1995)
Wickard v. Filburn, 317 U.S. 111 (1942)