This article is part of a two-part series (1/2).
The judiciary has long been considered an independent government apparatus, one that is expected to stay aloft over the messy process of making and enforcing laws. The presidency of President Donald Trump has brought the issue of judicial independence under scrutiny, as Trump rapidly filled vacancies in all three federal judiciary tiers.
The recent appointment and confirmation of Justice Amy Coney Barrett raised a new round of questions around abortion, gun control, and the “conservative court agenda,” as conservatives now have a 6-3 majority in the Supreme Court. A closer examination of the background of the three Trump-era Justices, however, yields a much more nuanced picture that cannot and should not be summed down to a mere “conservative majority.”
Of course, one can reasonably assume that the federal courts will become more conservative with their future rulings and leave a conservative impact on the judiciary branch. It is, however, unreasonable to believe that past landmark decisions would be overturned simply because of this conservative majority. Existing judicial procedures and norms prevent that.
Few would dispute that the Republicans had a desire to influence the judiciary. The Financial Times reported in September that Senate Majority Leader Mitch McConnell (R-KY) said the presidency should “leave no vacancy behind” when it comes to the federal courts. Trump himself had run on a platform in 2016 that pledged to “transform the federal judiciary with conservative judges,” a promise he largely delivered.
The Pew Research Center found that by mid-July of this year, Trump had appointed 24% of all active judges. He had appointed more appeals court justices than any previous president since President Jimmy Carter at this point within the presidential term. Considering that Republicans had raced through Supreme Court confirmation hearings for both Justice Brett Kavanaugh and Justice Amy Coney Barrett in record time, it is clear the Republican Party and Trump have had the willingness to commit to concrete actions toward this end.
Because it is practically impossible to examine each of the appeals court justices that President Trump had appointed, we can instead analyze the possible impacts of this presidency through its three Supreme Court nominees — Justices Gorsuch, Kavanaugh and Barrett.
Under the U.S. legal system and the doctrine of stare decisis, a lower court is obligated to follow legal precedent. It does not have the authority to overturn that precedent if a higher court established it. The Supreme Court thus holds absolute authority over the interpretation of laws. No matter how keen a lower court is to “push an agenda,” its ruling can only at best delay a decision without the support of the Supreme Court.
One of the most fundamental disagreements between liberal and conservative judges is over the legitimacy of textualism and originalism. Formally established by the late Supreme Court Justice Antonin Scalia, textualism and originalism demand the interpretation of statutes and the Constitution solely based on the written text if the Court encounters ambiguity when interpreting laws.
The “liberal” approach relies on interpreting the same law based on the original legislators’ intention. Liberals generally criticize textualism and originalism because the two methods of interpreting laws reject the belief that laws ought to adapt to developing social norms and benefit the greater good.
All three Supreme Court justices nominated by President Trump are openly textualists and originalists, but Kavanaugh said in his commencement address that laws can change in a positive direction, referencing the repeal of the “separate but equal” doctrine. In this sense, Kavanaugh may not be as firmly entrenched in originalism compared to his colleagues.
Interpretation of law makes up only one part of the judiciary process. The other is the doctrine of stare decisis: respect for legal precedent and judicial hierarchy. Because the Supreme Court is the highest authority in the judiciary, the point of interest is the perceived importance of precedents.
Gorsuch argued in his book he believes precedent is a part of the law and can be overruled if they conflict with the Constitution. Kavanaugh voiced respect for stare decisis during his confirmation hearing. Barrett similarly proclaimed respect for stare decisis in her panel with the Federalist Society, but said she remains open to overruling precedents if they conflict with the Constitution.
It is possible that a different interpretation of the Constitution — an originalist one — may yield conflict with existing precedents created under a legislative intent interpretation. On a purely theoretical level, whether a precedent (Roe v. Wade, for example) would be overthrown depends on whether the rulings were made based on an originalist interpretation or on legislative intent. But the possibility nevertheless exists that one will intentionally diverge from their system of beliefs to “push their agenda.”
To gauge the “on-the-ground” tendencies of the three new Supreme Court Justices, it is important to examine two wedge issues — gun rights and abortion. These have a long history of being divisive and partisan issues, and the debate over gun rights contributed to the establishment of constitutional originalism as a system of constitutional interpretation.
On the subject of gun rights, the three justices have all voiced support for gun rights. Kavanaugh, in particular, in his confirmation hearing, referred to D.C. v. Heller for an individual’s right to hold semi-automatic handguns based on the definitions of “common use” and “dangerous and unusual weapons,” but acknowledged that there could be exemptions. He avoided the question when Senator Diane Feinstein (D-CA) pressed him on specifics.
Gorsuch’s position on gun rights is unclear. According to a June article published in The Atlantic, the Supreme Court decided not to hear any major Second Amendment cases since D.C. v. Heller, even though the conservatives had the numbers to force the Supreme Court to hear at least one. The article attributed this fact to the possibility that the four conservatives — Justices Gorsuch, Clarence Thomas, Samuel Alito and Kavanaugh — were not confident Chief Justice John Roberts would side with them.
Still, judging by Kavanaugh’s reluctance to address the question over semi-automatic assault weapons directly in his confirmation hearing, it is possible that there is not a clear consensus on gun rights among the conservative justices.