Trump’s literary style and eclectic use of language should be no handicap to an appointment since law clerks do most of the drafting, especially for aged and ailing justices. If he were to insist on writing for himself, however, that would be all right, too, because many Supreme Court decisions are unintelligible enough that “covfefe” could be squeezed in between “life” and “liberty” without much notice. Nor should Trump’s unique temperament and revisionist views be a bar to membership on the high court.
In his 2016 book, Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted, Ian Millhiser profiled some of the court’s most notorious members. Among them is Justice James Clark McReynolds, who served from 1914-1941, after a stint as Woodrow Wilson’s attorney general, who was known as a “savagely sarcastic, incredibly reactionary Puritan anti-Semite.”
According to Millhiser, McReynolds was, also, a “cantankerous and lazy justice” who didn’t like reading briefs. He, further, distinguished himself by calling Franklin D. Roosevelt “a crippled son of a bitch.” McReynolds, according to ex-president and Chief Justice, William Howard Taft, was “inconsiderate of his colleagues and others, and contemptuous of everyone.” McReynolds didn’t speak to fellow Justice Louis Brandeis for three years because he was a Jew, and he left the room whenever Brandeis spoke. He was, scarcely, more accommodating to African Americans and females.
Another justice profiled in Injustices was Melville Fuller, the 8th Chief, who served from 1888-1910. Fuller voted just 5 times, out of 33, in favor of civil rights for African Americans. That was remarkable coming from a man who wanted, at 1882’s Illinois Constitutional Convention, to prohibit Blacks from settling in Illinois, and sought to stop those already there from exercising the vote. While in the Illinois House, Fuller called the Emancipation Proclamation “unconstitutional and contrary to the rules of civilized warfare.” Compared to the two foregoing justices Trump would be a stellar appointee.
The struggle that’s about to play out between supporters of Trump’s new nominee, and those opposed, is important in the near term, but unlikely to be outcome determinative for long. What is being overlooked is that the Supreme Court interprets the law; it doesn’t make it, and if the legislative branch of government is displeased with how the court interprets any law it is uniquely situated to force a different result by passing new legislation.
One day, perhaps, another president and a willing congress, will decide to expand membership on the court the way FDR tried, but failed to do, in 1937. Anything is possible in America, including making decisions that later prove to be improvident. The ability to correct those mistakes is one of the things that makes us great.
