Trump and Obergefell

During one of the debates, Mr Trump stated that he was "looking to appoint judges very much in the mold of [the late] Justice [Antonin] Scalia." Separately, in an interview with Chris Wallace, Mr Trump said that he would consider appointing judges who would overturn the recent Obergefell decision:

WALLACE: But — but just to button this up very quickly, sir, are you saying that if you become president, you might try to appoint justices to overrule the decision on same-sex marriage?

TRUMP: I would strongly consider that, yes.

Now Politico reports:

Donald Trump said he is “fine with” same-sex marriage ... “These cases have gone to the Supreme Court. They’ve been settled. And I’m — I’m fine with that,” he said.

As I have noted several times in this blog (for example, here), Scalia strongly dissented from the Obergefell decision, not because he was opposed to gay marriage per se, but because he considered the majority's use of substantive due process to be a judicial Putsch:

I write to call attention to this Court's threat to American democracy. ... [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. ... But what really astounds is the hubris reflected in today’s judicial Putsch. ... This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776; the freedom to govern themselves. ... This is a naked judicial claim to legislative -- indeed, super-legislative -- power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional provision agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices' "reasoned judgment." A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Justice Thomas in a separate dissent adds:

I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. ... . It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. ... Worse, it invites judges to do exactly what the majority has done here — “‘roa[m] at large in the constitutional field’ guided only by their personal views” as to the “‘fundamental rights’” protected by that document. ... . By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. ... That a “bare majority” of this Court ... is able to grant [the] wish of the petitioners, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.

An appropriate, intellectually consistent position for Mr Trump would have been:

Whether same-sex marriage should be legal is a matter that should be decided by the people and their legislatures. Although I personally support gay-marriage [if, in fact, that is his position, which would probably surprise many of his religious supporters], I disagree with the legal reasoning of the recent Obergefell majority opinion, which used a substantive due process argument to discover a non-existent right to same-sex marriage in the 14th Amendment. Therefore, I would support the appointment of judges who would overturn Obergefell and remand consideration of that issue to its rightful place in the Congress and the state legislatures, where gay marriage would likely be kept legal, given the current tenor of public opinion.

But that is not what Mr Trump said. That he cannot see the contradiction between a.) his promises to appoint judges who are in the mold of Scalia and therefore might consider overturning Obergefell and b.) his statement that the question of gay marriage has been settled by the Obergefell decision is disturbing and does not bode well for his ability to appoint judges in the Scalia mold.

I must admit that another intellectually defensible position for Mr Trump would be to say that, although he disagrees with the reasoning of the Obergefell decision, he would be willing to see the decision upheld out of consideration for the principle of stare decisis, the legal principle that subsequent courts should accept a rule established by a prior decision for the sake of consistency, even if the later court finds the legal arguments underpinning that rule faulty. Of course, Mr Trump was elected on the promise that he would overturn (and not preserve) many of the enactments of the Democratic Party and the judges that party appointed, so it is unknown how such a position would be received. It is unknown whether Justice Scalia would have been willing to apply stare decisis to let Obergefell stand. In its article on stare decisis, Wikipedia observes:

Justice Antonin Scalia explained the conservative view of stare decisis in a concurring and dissenting opinion joined by Justices Anthony Kennedy and Clarence Thomas in 2007:

"Stare decisis is not an inexorable command" or "a mechanical formula of adherence to the latest decision." It is instead "a principle of policy," and this Court has a "considered practice" not to apply that principle of policy "as rigidly in constitutional as in nonconstitutional cases." This Court has not hesitated to overrule decisions offensive to the First Amendment, a "fixed star in our constitutional constellation," if there is one, -- and to do so promptly where fundamental error was apparent. Just three years after our erroneous decision in Minersville School District v. Gobitis , the Court corrected the error in Barnette. Overruling a constitutional case decided just a few years earlier is far from unprecedented.

Justice Scalia then set forth in a footnote to the above paragraph a remarkable list of roughly 20 significant examples where the U.S. Supreme Court has discarded stare decisis in favor of correcting a mistake.

I hope in a later blog post to have more to say on Trump and the principle of stare decisis as it applies outside the decisions of the Supreme Court.