Once Donald Trump assumes the office of President of the United States, he will select a nominee to fill the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia earlier this year. This nomination will be among the most significant actions of Mr. Trump’s presidency. And for this reason, it is generating an intense amount of speculation and scrutiny.
For Americans who value democratic representation, there is much at stake in this process, and we should urge President-elect Trump to employ at least two criteria as he evaluates potential nominees.
Interpret the Law Rather than Arbitrating Morality
First, Mr. Trump should nominate a new justice who will serve as an interpreter of the law rather than an arbiter of morality. Although Muslim “mullahs” possess legal and moral authority, American Supreme Court justices are legal authorities who do not possess moral authority. Or, at least, should not. Justice Scalia himself addressed this criterion many times, but nowhere more eloquently than in a 2009 speech entitled, “Mullahs of the West: Judges as Moral Arbiters.”
In the speech, he lamented that many intellectuals in the United States have placed their faith in judges to guide us through the moral morass in which we find ourselves. Does a woman have a natural right to an abortion? Can society take a man’s life for a crime he committed? Is it fair to deny marriage between two people of the same sex? These questions and others like them are deeply and profoundly moral; they should be decided by the People rather than unelected judges.
And yet, the United States finds itself in a situation in which a number of federal judges have stolen this right away from the People. They have done so by taking a “living document” view of the Constitution. The “living document” view contends that the framers purposefully composed the Constitution in broad and flexible terms so that future judges could reinterpret it in light of “the times.”
In effect, Supreme Court justices who employ this view are able to take things out of the Constitution that they do not like and insert things they do. Justice Scalia argued that the prime example of this sort of judicial activism is Roe v. Wade (1973). In that decision, the majority of justices on the Court bypassed the text of the Constitution and historical tradition in order to create a right to privacy. This right to privacy served as the rationale for striking down state laws that restricted abortion.
On a matter of such moral profundity, the justices of the Supreme Court should have followed the admonition of our Founding Fathers—to consult the will of the People. Amendments to the Constitution require an overwhelming majority in Congress and ratification by three-fourths of the state legislatures. Effectively this means that any change to the Constitution must reflect the will of the People—but this requires exactly the kind of judicial restraint that should be exemplified by Mr. Trump’s nominee.
Reject Unconstitutional Precedents Rather than Building upon Them
Second, Mr. Trump should nominate a Supreme Court justice who is willing to reject the precedent of previous Supreme Court decisions when those precedents conflict with the original text of the Constitution. As Randy Barnett, Professor of Legal Theory at Georgetown University, recently argued, this criterion is especially significant because of the damage done from decades of living document interpretations.
Barnett notes that Supreme Court Justice Clarence Thomas is the exemplar, having been more willing than his colleagues to reject unconstitutional precedents. Rejecting those precedents doesn’t always require overturning programs or entitlements upon which citizens have come to rely. But it does require the refusal to use these past decisions as levers with which to enact new unconstitutional rulings.
No Need for Mullahs at 1 First Street
If Mr. Trump will nominate a justice who satisfies these two criteria, he will send a message that there is no need for mullahs at 1 First Street in Washington, D.C.—the Supreme Court building. He will help establish a Supreme Court whose justices respect the Constitution by reading it the way it was meant to be read, who reject precedents that fail to meet this standard, and who respect their own role as members of the judicial branch of government rather than bypassing Congress to legislate morality from the bench.
We must say “no constitutional adjudication without responsible interpretation,” and “no moral arbitration without democratic representation.”
Bruce Ashford is Provost and Professor at Southeastern Baptist Theological Seminary. He is the co-author of “One Nation Under God: A Christian Hope for American Politics.” Follow him on Twitter @BruceAshford and on the web at http://bruceashford.net/about/.