New York Times

A Potential Agenda for the Supreme Court in the Era of Trump

November 29, 2016

by Adam Liptak

WASHINGTON — A week after the presidential election, the leaders of the conservative legal movement gathered here for the annual convention of the Federalist Society. The mood was by turns somber and giddy.

The meeting had been planned as a memorial to the legacy of Justice Antonin Scalia, who died in February. But the surprise election of Donald J. Trump energized the affair.

Instead of talk of opportunities lost, the hallways of the Mayflower Hotel buzzed with ambitious plans. There was general satisfaction with the 21 candidates on Mr. Trump’s list of potential Supreme Court nominees, many of whom were present.

If one of them succeeds Justice Scalia, the Supreme Court will again be dominated by Republican appointees, though Justice Anthony M. Kennedy, a moderating force, will retain the decisive vote in most of the closely divided cases.

Soon, though, given actuarial realities, Justice Kennedy’s place at the court’s ideological center could disappear. He is 80. One liberal justice, Ruth Bader Ginsburg, is 83, and another, Justice Stephen G. Breyer, is 78. Should Mr. Trump also name a replacement for any of those three, the conservative legal movement will have captured the Supreme Court.

That reality was lurking in the background when Justice Samuel A. Alito Jr. gave the convention’s opening address. Justice Alito is, along with Justice Clarence Thomas, one of the court’s two most conservative members. He is also a fine lawyer and a savvy strategist, and his talk seemed to set out an agenda for the Supreme Court in the Trump era.

“I want you to think about some constitutional fault lines,” he told an overflowing ballroom, with people standing four deep in the balcony.

“In places in the country where they have those lines,” he said, “sometimes the earth starts to tremor, and people get worried about what’s coming.”

He focused on the first two amendments in the Bill of Rights, suggesting that only conservative resolve could rescue free speech, religious liberty and gun rights from liberal attempts to undermine them.

His tone was one of embattlement and occasional grievance, and his remarks were punctuated by wry and rueful humor. He mixed constitutional principle with cutting comments on the culture wars.

Like Mr. Trump, Justice Alito had little patience with perceived political correctness. Justice Scalia grew up in Queens, in an ethnically diverse neighborhood, Justice Alito said, calling it “a melting pot.”

But, he added, “I will not say that, because I know that, according to the powers that be at the University of California’s university system, the phrase ‘melting pot’ is a microaggression.”

He was being sarcastic, and his larger point was that the American left has lost sight of the value of free speech. He quoted a famous passage from a 1943 opinion from Justice Robert H. Jackson: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”

That opinion, which struck down a law requiring students to recite the Pledge of Allegiance, was thought to be a liberal free-speech victory. Things have changed, Justice Alito said, and he seemed to allude to the motto on the hats Mr. Trump wore on the campaign trail.

“On college campuses, both public and private, a new orthodoxy rules,” Justice Alito said. “Suppose that a student were to test Justice Jackson’s proposition today by wearing an article of attire supporting a political candidate who was unpopular among the students and professors by proclaiming that the United States is a great and a good country and by expressing certain traditional religious beliefs.”

“How would that go over?” Justice Alito asked.

He said something similar was at work in an effort to overturn the Citizens United decision — which allowed unlimited corporate and union spending in elections — through a constitutional amendment that would allow the regulation of such spending, except for spending by media corporations.

“More than 40 senators have proposed an amendment to the First Amendment, which in itself is an important development,” Justice Alito said. “And what would that amendment do? It would have the effect of granting greater free speech rights to an elite group, those who control the media, than to everybody else.”

He moved on to another clause of the First Amendment, here invoking Bob Dylan. “Freedom of religion is in even greater danger,” Justice Alito said. “I am reminded of a song by the latest recipient of the Nobel Prize for Literature: ‘It’s not dark yet, but it’s getting there.’”

Justice Alito said that even conservative victories remained in peril. He paid tribute to what he called “perhaps Justice Scalia’s most important majority opinion,” District of Columbia v. Heller, which in 2008 interpreted the Second Amendment to guarantee an individual right to own guns. The vote was 5 to 4.

“Heller, as I am sure you know, holds that the Second Amendment actually means what it says,” Justice Alito said. But he suggested that the right could easily be undermined.

“Justice Breyer’s dissent provides a road map for denaturing Heller without actually overruling it,” Justice Alito said. Justice Breyer had proposed a balancing test to decide whether gun control laws passed constitutional muster, one that took account of a right to self-defense on one hand and public safety on the other.

Justice Alito said balancing tests were a dangerous business.

“As Nino told us more than once,” Justice Alito said, referring to Justice Scalia by his nickname, “if a judge uses a balancing test, then the balance will almost always come out exactly the way the judge wants it to come out.”

At the conclusion of his survey of constitutional fault lines, Justice Alito received a thunderous ovation. His audience, invigorated, streamed into the hallways and got to work.