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Engaged Trump Judges May Restore The Role Of The Courts

What so far has been the impact of President Donald Trump’s judicial appointments? The answer, I suggest, despite doomsday prophesies from progressives, is that except for a decision here or there, it’s too soon for any solid assessment to be made.

So rather than search for clues by parsing the U.S. Supreme Court’s recent decisions, much less dive into the courts below where so many decisions become final and where Trump is making many important appointments, I’d like to step back and focus instead on the larger picture, the better perhaps to speculate more broadly on the future impact of Trump’s appointments. And for that, we should note at the outset what hardly needs noting, that in recent decades the battle over the courts, and over the Supreme Court in particular, has grown increasingly acrimonious, even brutal.

Witness the confirmation fights over Justice Neil Gorsuch and, especially, Justice Brett Kavanaugh. What emerged most sharply from those and several earlier hearings were two very different views of the role of the judge. And the progressive side was no better captured than during the Gorsuch hearings when Senate Judiciary Committee Democrats, along with their outside supporters, repeatedly charged the nominee with ruling for corporations and against workers, minorities, women and, especially, the “little guy.” Ranking member Sen. Dianne Feinstein, D-Calif., echoed often across her side of the committee, put it plainly when she asked Gorsuch: “How do we have confidence in you, that you won’t be just for the big corporations? That you will be for the little man?”

The implications of that view for the rule of law are stark. They amount to asking Lady Justice to remove her blindfold, to rule based not on the law but on who the parties are. Perhaps it was Chief Justice John Roberts in his own confirmation hearings in 2005 who stated the other side most succinctly, if metaphorically, when he likened the role of a judge to that of an umpire calling balls and strikes by the rules of the game. The rules of our game are set most generally, of course, by the U.S. Constitution.

For more than a century, progressives have read that document largely as “living,” as an empty vessel to be filled by transient majorities or, when the people get it wrong ideologically, by executive branch agencies or the courts. Conservatives, by contrast, have seen the document as rich in content, initially as a brake on majoritarianism, later as a font of majoritarianism, and more recently as a subtle mix of the two. I submit that the key to what is going on with Trump’s judicial appointments may be found in that conservative evolution. To see that, however, we need a brief overview of constitutional theory and history by way of context, focusing on the role of the courts.

Read the full article at Law 360.