I'm not sure I would have voted if my last U.S. residence was in a competitive state. But the more I reflect on the 2016 presidential race, the stronger my feeling that the United States dodged a bullet from which there would have been no return. Had Hillary Clinton be able to appoint three Supreme Court justices, the administrative state in which congressional lawmaking is well-nigh irrelevant would have been entrenched forever, and the spirit of liberty that has always been the hallmark of the Anglo-speaking people all but buried.
Now, it is Donald Trump who appears likely to set the course of Supreme Court jurisprudence for decades to come. He will almost certainly have to resort to the "nuclear option" and get rid of the filibuster for Supreme Court nominees – as Clinton would have done had the Democrats narrowly controlled the Senate. But once done his nominees should have smooth sailing if he sticks to the list he brandished in the campaign.
With the choice of a successor to Justice Scalia, Trump will return the Court to the status quo prior to Scalia's passing, which resulted in a large number of 4-4 non-decisions in important cases in the Supreme Court term just completed. Justice Kennedy would once again hold the decisive vote on many high-profile cases. If Kennedy, 80, retires, as is rumored likely, there would be an opportunity to secure a narrow conservative majority.
Ruth Bader Ginsburg, the Court's most liberal justice, is 83 and has been seriously ill for years. Should she resign, President Trump would have the opportunity to cement a solid conservative majority of justices in their late '40s or early '50s likely to serve for decades. At that point, Justice Stephen Breyer, 78, might just decide that there is no point hanging around as a member of a permanent minority.
With a 6-3 majority, the Supreme Court could do a great deal to restore republican governance by showing less deference to administrative agencies and limiting the scope of congressional delegation of rulemaking authority.
IN WHAT OTHER WAYS will the differences between a Court dominated by Clinton appointees and one dominated by Trump appointees play out? One crucial area of difference would be with respect to religious liberty. Professor Richard Samuelson notes, "America's governing class – and such a class arises inevitably when a state grows and grows – is increasingly hostile to [institutional religion]. They cling to their belief that traditional religion ought to be gone. . . . The elite's intrusions upon rights of conscience are not, in their view, problematic because the religious beliefs it hems are historically 'backward' and atavistic."
As an example of that attitude, candidate Clinton declared that if traditionally religious people could not reconcile themselves to celebrating the new "rights" recognized by Obergefell, their religion would just have to change.
Increasingly, Democrats speak not of freedom of religious but of "freedom of worship," a much more circumscribed concept, which would put no limits on state imposed infringement of individuals' religious conscience, as long as freedom of worship is maintained. Once Americans held an expansive view of freedom of association – i.e., the right to associate or not with anyone on such terms as one wants. But starting with the 1964 Civil Rights Act, what used to be considered the private realm of voluntary association has given way to the notion that government must regulate more and more of civil society, and religious belief cannot be allowed to stand in the way of the enforcement of new "rights."
After the economic boycotts last year against states that sought to pass RFRA statutes (so-called after the Religious Freedom Restoration Act signed into law by President Clinton), it is doubtful that more states will pass such statutes. Nevertheless I would expect the "Trump Court" to give an expansive reading of the existing federal statute, which requires the showing of a compelling state interest before imposing a heavy burden on the exercise of religious conscience – e.g., the imposition of a heavy fine for refusing to place two grooms on a wedding cake.
The same Court might also cut back on Smith v. Oregon, in which the Court held (with Justice Scalia writing the opinion) that as long as a facially neutral statute was not enacted to burden a particular religion or religious beliefs it will be enforced equally against those whose religious conscience is burdened by that enforcement. (RFRA was effectively a legislative repeal of Smith v. Oregon, and a return to the previous Supreme Court jurisprudence of judicially created exemptions from undue infringements or burdens on religious conscience.)
The Trump Court, if the new president follows his list, will not discover any new "rights:" undreamed of by the Founders based on the Hallmark greeting card type of sentiments expressed by Justice Kennedy in his Obergefell opinion, so mercilessly skewered by Justice Scalia in dissent. In ruling that for a state to define marriage as has every society in human history and every state of the United States until 15 years ago violates the "due process" clause, the Court placed advocating for the traditional definition of marriage on par with advocating for slavery or against interracial marriage.
By that standard, Orthodox institutions could find themselves in the position of Bob Jones University and lose their tax exempt status, as the Solicitor General admitted in oral argument. A Trump Court is highly unlikely to follow Obergefell to its logical conclusion – one that would inflict incalculable harm on the Orthodox community.
I would further expect the Trump Court to eschew a broad reading of the Establishment Clause, and to take a sympathetic view towards school vouchers and other provisions of goods and services to children attending parochial schools. Given the Republicans' total control of over half the states legislatures and governors' mansions – albeit not those with the largest numbers of Jews – the momentum towards school vouchers and neutral assistance to all school age children should continue.
In one sense, however, the Trump Court will take an expansive approach to the Establishment Clause and rein in progressive attempts to establish a secular orthodoxy with which it if forbidden to disagree. It will make short-shrift of the current efforts of several Democratic state attorneys-general to prosecute climate change denial and to burden anti-alarmists with vast and costly discovery requests.
Candidate Clinton said that a commitment to overturn Citizens United would be a litmus test for her Supreme Court appointees. A Trump Court, by contrast, will likely advance a robust vision of political speech. Citizens United is secure. (As an ironic footnote, Citizens United arose out of an attempt by the Federal Elections Commission (FEC) to ban the screening of a documentary critical of Hillary In 2008 during the Democratic nominating process.)
The coming decade will likely be a favorable one to litigate on behalf of the clients of FIRE (Foundation for Individual Rights in Education) against attempts to enforce campus orthodoxies or to suspend all due process protections in disciplinary hearings.
LIVE BY THE SWORD DIE BY THE SWORD. Constitutional law professor Josh Blackman points out that many of the most contentious issues facing the Supreme Court can be removed from the docket by President Trump with a stroke of the pen.
Litigation over Obama's executive order suspending enforcement of immigration statutes and over the administration's payments to health insurers of monies not allocated by Congress can be halted instantly by refusing to defend the Obama administration's position. A quick administrative fix can be found for the Little Sisters of the Poor's suit to be exempted from the Obamacare requirement to purchase insurance policies for employees that cover activities that violate their religious consciences.
The Department of Education "Dear Colleague" letter instructing school administrators that discrimination of the basis of "gender identity" is included in Title IX, even though not mentioned, will be rescinded. Similarly, the EPA's "Clean Power Plan," to destroy the coal industry.
IT IS IMPOSSIBLE TO SAY with certainty what would have been President Hillary Clinton's approach to Israel. Her representatives fought successfully against a more anti-Israel plank in the Democratic Party platform advanced by supporters of Bernie Sanders.
Nevertheless, there are good reasons to believe that Israel would have been subjected to unrelenting pressure in a Clinton presidency. As Secretary of State, Clinton never distanced herself from the Obama administration's approach to Israel.
And she has surrounded herself with officials whose attitude towards Israel is one of hostility. Her choice for vice-president, Tim Kaine, is J Street's favorite senator. One of the likely candidates for Secretary of State was Anne-Marie Slaughter. As Director of Policy Planning in the Clinton State Department, Slaughter wrote a memo urging the Clintons to mobilize their vast network of wealthy friends to take a "Pledge for Palestine" to shame Israel into the cessation of all settlement building, presumably including East Jerusalem. To which Clinton replied, "I'm very interested – pls. flesh out."
Clinton's choice to head the State Department's Benghazi review, which did not even include an interview with the Secretary of State at the time, was former Ambassador to Israel Thomas Pickering. He once sent to Clinton a plan to foment civil disobedience by Palestinian women against the Israeli government via NGOs so as to wipe the fingerprints of the State Department off the gun.
And finally, there are the numerous emails from long-time consigliere Sidney Blumenthal proudly passing on his son Max's latest rants against Israel, whose destruction he advocates. Not once did Madame Secretary express a desire to be spared receiving any further such missives.
So along with Orthodox Jews in America (whatever their misgivings about Donald Trump), Prime Minister Binyamin Netanyahu should also be breathing a sigh of relief.
Related Topics: American Government & Politics, Arab-Israeli Conflict, Personalities
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