Randy Barnett in the Wall Street Journal: Two Questions for Donald Trump’s Supreme Court Nominees
On Trump’s commitment to originalism:
I’m pleased to see that President-elect Trump is echoing Scalia. Last week Mr. Trump’s transition team affirmed that he will nominate judges “who are committed to interpreting the Constitution and laws according to their original public meaning.” During the campaign Mr. Trump released a list of 21 potential candidates for Scalia’s seat. Those on the list with whom I am familiar would be sympathetic to originalism.
Discussing the issue of stare decisis:
The bigger unknown is where they stand on stare decisis—Latin for “let it stand.” This is the idea that precedents of previous Supreme Courts should be followed, even when they conflict with the original text of the Constitution. Here is where Scalia’s friend and colleague, Justice Clarence Thomas, comes to the fore.
Justice Thomas has been more willing to reject stare decisis and reverse precedents. Consider the New Deal-era case Wickard v. Filburn. In 1942 the Supreme Court held that Congress’s power to regulate interstate commerce extended to a farmer growing wheat to feed his own livestock. Sixty-three years later, that expansive reading of the Constitution’s Commerce Clause continues to hold.
Which leads to the two questions that the Trump administration should be asking of potential judicial nominees. First: Will they elevate precedent over the original meaning of the Constitution, thereby locking in a highly distorted reading of federal power? Or will they insist on interpreting America’s founding document and its amendments as they were written?
Second: Do they, like Justice Scalia, have the courage of their convictions—the intestinal fortitude to stand against the public’s demand for this or that outcome, and to do what they believe to be right? Or will they bend with the political wind to protect the “legitimacy” of the court?
This isn’t a matter of seeking judges who will reach conservative results versus liberal ones. It’s about adhering to the text of the Constitution, while letting the political chips fall where they may. (Justice Thomas would have reached a “liberal” result in Raich.)
The last point is particularly important to emphasize. At the recent Federalist Society convention on Justice Scalia's jurisprudence, one of the themes was the underappreciated extent to which Scalia reached "liberal" results, including in free speech, fourth amendment privacy, and the rights of criminal defendants.