What I Fear Most a Trump Appointment

Ruth Bader Ginsburg

 To be clear, what I fear most from a Trump appointment is not the repeal of Roe v. Wade.  In fact, I am at odds with almost all of liberal orthodoxy here, but I believe that Roe was a mistake from the start.  There is not one clause anywhere in the Constitution that says anything even remotely related to abortion.  While I favor a broad interpretation of the actual language of the Constitution, I do not favor making up rights out of whole cloth.  I do not favor substantive due process, and I see Roe as a particularly dangerous decision for exhuming the corpse of that long-buried doctrine and creating a zombie.*

The greatest danger of substantive due process is that there is no way of determining what is and is not a substantive due process right.  So far as I can tell, the Supreme Court goes about it one of two ways.  One is to look to rights recognized by common law.  That has the advantage of offering at least some guidance, but the disadvantage of tying us to a centuries old set of rules, many of which were archaic even when the Constitution was written.  The other is to attempt to discern certain fundamental rights.  But that simply means letting judges invent rights out of whole cloth.  If one judge thinks an abortion ban violates a fundamental right, what is to stop another judge from deciding that labor protective legislation violates the fundamental right of freedom of contract?

Abortion, like any other topic not expressly addressed in the Constitution, should be left to the ordinary legislative process.  

Furthermore, the Supreme Court has chipped away at Roe so far at to make it almost meaningless -- despite the decision that remains on the books, many states have passed legislation that makes abortion almost impossible to obtain.  Some states have truly extreme measures on the books -- measures that would ban IUD's, hormonal contraceptives, and in vitro fertilization.  State legislatures are able to pass such legislation because they know it will be struck down.  If states actually had to deal with the consequences of their more extreme laws, somehow they would find their principles not quite so rigid as they thought.

So I am fine with the reversal of Roe v. Wade.  It is other things I fear.**

I fear an extreme economic royalist Supreme Court striking down almost any regulation of economic activity as unconstitutional.

I fear a radically partisan Supreme Court, upholding the most extreme claims of executive power under a Republican President, but on terms so narrow and technical as to allow them to deny even the most modest claims of a Democrat.

And I fear the overturn of Obamacare.  

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*I hope to post more on that at a later date.
**One thing I don't fear is reversal of most of the Supreme Court's criminal procedure provisions.  Conservative justices appear to take the rights of the accused seriously.  I suppose in a second Trump term that might change.