Trump v. Clinton (2016): How Would the Roberts Court Rule?

Last May, when he was only the presumptive Republican nominee, Donald Trump released a list of potential Supreme Court nominees, hoping to provide some reassurance to conservatives questioning his allegiance to their values.  The move may have helped Trump secure the nomination, though some (many?) in the GOP remain unconvinced.  The NeverTrumps are still here, helping Hillary.

Trump also made it clear that, as president, he would reverse Obama administration policies in a number of areas, including immigration and health care.  Obama's many "pen and phone" executive orders are also likely to be canceled.  What sort of priority Trump will give these efforts once in office is unclear at this point.  Being a man of his word, he is likely to follow through at least with a plan of action and a timetable.  His first year in office will be a hectic time.

Reversing Obama administration policies will not be easy, even if the GOP manages to keep both houses of Congress.  Democrats, their allies, and a variety of vested interests are sure to put up a fight, resorting to a strategy that stands a good chance of success – namely, the courts.  Liberal judges are everywhere these days, at virtually every level, and routinely ignore the separation-of-powers dividing line to help politicians on their side.  The line is getting fainter and fainter by the day.

This raises the question of what would happen if a Democrat challenge to President Trump reached the Supreme Court.  If the issue is the Affordable Care Act, the answer is obvious: the Roberts Court would rule in favor of the plaintiff.  The chief justice is already on record that the ACA is consistent with the Constitution, a fact Democrats will lose no time pointing out when their lawyers plead before the High Court.  Would Trump's restrictions on Muslim immigration fare any better?  I'm not confident.

As bad as this is – and it is very bad, indeed – there is a scenario that is far more worrisome: the possibility, not at all fanciful, that election results will end up before the Supreme Court again.  Recall that in Bush v. Gore (2000), the Rehnquist Court stepped in and ended Florida recounts, allowing George W. Bush to become president.  The decision was widely criticized, but it stood.  Al Gore moved on to greener pastures as a global warming alarmist, a racket that continues to earn him big bucks.  Dancing with the Stars is unlikely to call any time soon.

History might repeat itself no matter who wins in November.  There are two scenarios.

Possible Scenario 1: Hillary Clinton wins

The polls right now show Trump slightly ahead.  His outreach to the black community and the trip to Mexico are evidently attracting more and more independents.  Suppose this trend continues after the debates, which Trump has a good chance of winning.  At that point, the Democrats realize that the situation is desperate and resort to fraud. Crooked Hillary steals enough votes in key states such as Florida, Ohio, Pennsylvania, Michigan, and North Carolina to reach the magical 270 number.

Trump has clear evidence that Clinton won by cheating, just as Kennedy won against Nixon in 1960.  Unlike Nixon, however, Trump refuses to roll over; he files an appeal, and the case eventually reaches the Supreme Court.  Then what?  With Scalia gone, Roberts, Thomas, and Alito are in the minority.  By a vote of 5 to 3, the charges against Clinton are dismissed.  Trump goes back to the real estate business.

Possible Scenario 2: Donald Trump wins 

The Clintons are not known for being gracious losers – or gracious anything, for that matter.  Remember the stolen White House furniture and the silly vandalism by staffers, no doubt encouraged from above?

So Hillary does not concede defeat and instead charges...fraud!  Democrats evidently failed to steal enough votes and are now mad that they failed.  They must try again.  Aided by the MSM, a nationwide "fairness" campaign is launched demanding a recount.

Clinton holds secret meetings with Black Lives Matter, Jesse Jackson, and Al Sharpton.  Riots follow soon thereafter.  The police are reluctant to intervene or are ineffective.  Democrat and NeverTrump governors (same thing) fail to call in the National Guard.  Obama hits the links.  Clinton appears on CNN to urge calm but also to expresses "outrage" that Republicans "are depriving folks of their civil rights."  Anderson Cooper and Wolf Blitzer nod in agreement.  The New York Times harrumphs indignantly atop a moral high horse, followed by similar noise from The Washington Post.

Clinton files an appeal demanding a recount, which sails quickly through the courts and lands on Chief Justice Roberts's desk.  By a vote of 5 to 3, the High Court orders recounts in states where Clinton claims that Republicans committed fraud.

Miraculously, this time the numbers come out "right."  Clinton is officially declared president of the United States.  Lindsey Graham, Bill Kristol, George Will, Glenn Beck, Jonah Goldberg, and others celebrate into the wee hours.  Cooper and Blitzer do the tango.

What is to be done?

The Trump campaign is well aware that the Democrats will try to cheat.  They got a big, though possibly unintentional "assist" the other day when the Supreme Court refused to reinstate North Carolina's 2013 voting law, struck down by the U.S. Court of Appeals' 4th Circuit.  So, between now and Election Day, Trump and his people must be extra-vigilant.  Time is running short, and it will be an uphill battle; they will get no help from the MSM or local officials who are Democrats or NeverTrumps (same thing).

What about the long term?  Though the tripartite structure our Founders built has served us well by and large, many Americans now feel that our courts are becoming increasingly politicized and are exercising powers never envisioned by the Framers – including the Supreme Court itself, which wields enormous power and is accountable to the electorate only indirectly through the elected officials appointing the nine justices and the elected officials confirming them.

For example, the Constitution does not explicitly provide that the federal judiciary shall have the power of judicial review.  Rather, the power to decide whether a law is or is not consistent with the Constitution is an implied power and is considered to follow from provisions in Article III and Article VI.  It was Supreme Court chief justice John Marshall in Marbury v. Madison (1803) who first asserted that the High Court has the power to declare a law unconstitutional, setting a precedent in place ever since.

Marshall, however, never dreamed that judicial activism would become so extreme.  Because it has, the time may be right for a Constitutional Convention to reassess judicial review.  This power needs to be defined with an eye to restricting its scope significantly and bring it closer to what the Framers originally intended.  As Hamilton implied in Federalist No. 78, power belongs to the people.  Let's have another look at how laws are judged to be valid, who shall have the authority to judge them thus, and to what extent.

On thing is for sure: with Hillary Clinton in the White House, judicial overreach will get worse – much worse.  NeverTrumps really, really, really need to get a grip.

Arnold Cusmariu is a frequent contributor to American Thinker. His academic publications are available at Academia.edu, the most recent of which is "A Methodology for Teaching Logic-Based Skills to Mathematics Students."

Last May, when he was only the presumptive Republican nominee, Donald Trump released a list of potential Supreme Court nominees, hoping to provide some reassurance to conservatives questioning his allegiance to their values.  The move may have helped Trump secure the nomination, though some (many?) in the GOP remain unconvinced.  The NeverTrumps are still here, helping Hillary.

Trump also made it clear that, as president, he would reverse Obama administration policies in a number of areas, including immigration and health care.  Obama's many "pen and phone" executive orders are also likely to be canceled.  What sort of priority Trump will give these efforts once in office is unclear at this point.  Being a man of his word, he is likely to follow through at least with a plan of action and a timetable.  His first year in office will be a hectic time.

Reversing Obama administration policies will not be easy, even if the GOP manages to keep both houses of Congress.  Democrats, their allies, and a variety of vested interests are sure to put up a fight, resorting to a strategy that stands a good chance of success – namely, the courts.  Liberal judges are everywhere these days, at virtually every level, and routinely ignore the separation-of-powers dividing line to help politicians on their side.  The line is getting fainter and fainter by the day.

This raises the question of what would happen if a Democrat challenge to President Trump reached the Supreme Court.  If the issue is the Affordable Care Act, the answer is obvious: the Roberts Court would rule in favor of the plaintiff.  The chief justice is already on record that the ACA is consistent with the Constitution, a fact Democrats will lose no time pointing out when their lawyers plead before the High Court.  Would Trump's restrictions on Muslim immigration fare any better?  I'm not confident.

As bad as this is – and it is very bad, indeed – there is a scenario that is far more worrisome: the possibility, not at all fanciful, that election results will end up before the Supreme Court again.  Recall that in Bush v. Gore (2000), the Rehnquist Court stepped in and ended Florida recounts, allowing George W. Bush to become president.  The decision was widely criticized, but it stood.  Al Gore moved on to greener pastures as a global warming alarmist, a racket that continues to earn him big bucks.  Dancing with the Stars is unlikely to call any time soon.

History might repeat itself no matter who wins in November.  There are two scenarios.

Possible Scenario 1: Hillary Clinton wins

The polls right now show Trump slightly ahead.  His outreach to the black community and the trip to Mexico are evidently attracting more and more independents.  Suppose this trend continues after the debates, which Trump has a good chance of winning.  At that point, the Democrats realize that the situation is desperate and resort to fraud. Crooked Hillary steals enough votes in key states such as Florida, Ohio, Pennsylvania, Michigan, and North Carolina to reach the magical 270 number.

Trump has clear evidence that Clinton won by cheating, just as Kennedy won against Nixon in 1960.  Unlike Nixon, however, Trump refuses to roll over; he files an appeal, and the case eventually reaches the Supreme Court.  Then what?  With Scalia gone, Roberts, Thomas, and Alito are in the minority.  By a vote of 5 to 3, the charges against Clinton are dismissed.  Trump goes back to the real estate business.

Possible Scenario 2: Donald Trump wins 

The Clintons are not known for being gracious losers – or gracious anything, for that matter.  Remember the stolen White House furniture and the silly vandalism by staffers, no doubt encouraged from above?

So Hillary does not concede defeat and instead charges...fraud!  Democrats evidently failed to steal enough votes and are now mad that they failed.  They must try again.  Aided by the MSM, a nationwide "fairness" campaign is launched demanding a recount.

Clinton holds secret meetings with Black Lives Matter, Jesse Jackson, and Al Sharpton.  Riots follow soon thereafter.  The police are reluctant to intervene or are ineffective.  Democrat and NeverTrump governors (same thing) fail to call in the National Guard.  Obama hits the links.  Clinton appears on CNN to urge calm but also to expresses "outrage" that Republicans "are depriving folks of their civil rights."  Anderson Cooper and Wolf Blitzer nod in agreement.  The New York Times harrumphs indignantly atop a moral high horse, followed by similar noise from The Washington Post.

Clinton files an appeal demanding a recount, which sails quickly through the courts and lands on Chief Justice Roberts's desk.  By a vote of 5 to 3, the High Court orders recounts in states where Clinton claims that Republicans committed fraud.

Miraculously, this time the numbers come out "right."  Clinton is officially declared president of the United States.  Lindsey Graham, Bill Kristol, George Will, Glenn Beck, Jonah Goldberg, and others celebrate into the wee hours.  Cooper and Blitzer do the tango.

What is to be done?

The Trump campaign is well aware that the Democrats will try to cheat.  They got a big, though possibly unintentional "assist" the other day when the Supreme Court refused to reinstate North Carolina's 2013 voting law, struck down by the U.S. Court of Appeals' 4th Circuit.  So, between now and Election Day, Trump and his people must be extra-vigilant.  Time is running short, and it will be an uphill battle; they will get no help from the MSM or local officials who are Democrats or NeverTrumps (same thing).

What about the long term?  Though the tripartite structure our Founders built has served us well by and large, many Americans now feel that our courts are becoming increasingly politicized and are exercising powers never envisioned by the Framers – including the Supreme Court itself, which wields enormous power and is accountable to the electorate only indirectly through the elected officials appointing the nine justices and the elected officials confirming them.

For example, the Constitution does not explicitly provide that the federal judiciary shall have the power of judicial review.  Rather, the power to decide whether a law is or is not consistent with the Constitution is an implied power and is considered to follow from provisions in Article III and Article VI.  It was Supreme Court chief justice John Marshall in Marbury v. Madison (1803) who first asserted that the High Court has the power to declare a law unconstitutional, setting a precedent in place ever since.

Marshall, however, never dreamed that judicial activism would become so extreme.  Because it has, the time may be right for a Constitutional Convention to reassess judicial review.  This power needs to be defined with an eye to restricting its scope significantly and bring it closer to what the Framers originally intended.  As Hamilton implied in Federalist No. 78, power belongs to the people.  Let's have another look at how laws are judged to be valid, who shall have the authority to judge them thus, and to what extent.

On thing is for sure: with Hillary Clinton in the White House, judicial overreach will get worse – much worse.  NeverTrumps really, really, really need to get a grip.

Arnold Cusmariu is a frequent contributor to American Thinker. His academic publications are available at Academia.edu, the most recent of which is "A Methodology for Teaching Logic-Based Skills to Mathematics Students."