The big takeaway for the chattering classes seems to be Trump’s coy refusal to accept in advance the results of the coming election. Really this isn’t surprising but for some reason people never seem to take what he says at face value. He has said this before and it is entirely consistent with his general approach to life. Of course surrogates, like his campaign manager and his daughter, immediately came forward to disavow this unprecedented position. However as I write this, I am listening to Trump’s first post-debate rally. He just explained, “Of course I will accept the election results … if I am the winner!” The crowd roared its approval and broke into a familiar chant, “Lock her up! Lock her up!” I don’t know whether to laugh or cry.
However, I found something else in the debate to be far more significant. An initial topic was the Supreme Court. Hillary said forthrightly that she viewed the Court’s primary responsibility to be “to stand on the side of the American people, not corporations.” I take this to mean that she wants Justices who see their job as looking out for the welfare of the average person. Truthfully, my jaw dropped. Does she really mean that?
I do understand where she is coming from. Many people believe that this Court, marginally dominated by conservatives, has rendered decisions that go against “the little people”. Citizens United v. Federal Election Commission is a prime example. But to say that the Court must take the opposite tack is equally wrong. That simply is not the purpose or mandate of our highest court. It is not designed to be Big Mommy for us all. Rather it has a quite specific role in adjudicating the consistency of laws with our Constitution and in rendering judgments in certain special areas of the law. Of course it should try to do this fairly and, since the Justices have human frailty, they will not always succeed. But the Court having agendas is a mistake even if we applaud them.
Of course Presidents will nominate candidates for Court vacancies who are philosophically compatible with their own viewpoint. And no one can doubt that Justices bring biasing perspectives to their decisions. However this is a far cry from setting a specific agenda to be followed independent of the cases involved. This is one instance where literal interpretation of our Constitution is most compelling, even if you disagree with this as the proper approach in general. If the writers of this marvelous and enduring document had intended the primary role of the Court to be a bulwark against threats to the public welfare they would indubitably have said so. No one who has examined their other writings and statements could possibly believe that this was their unwritten intent.
It is the duty of Congress to serve this role. If it fails on occasion, having another of the coequal branches of government take up the slack is perhaps attractive if what it does meets with our approval. But we will inevitably regret it if that ever becomes the norm as it will destroy the true essence of our form of government.