Trump's dangerous approach to the Supreme Court

Ruth Marcus on Apr 1, 2018

But judging doesn't work that way, certainly not at the Supreme Court level. The justices are not computers, they are humans, very smart ones, with very well-thought through views about the Constitution and the law.

So you might think Trump's legal realism, such as it is, would be a welcome antidote to Roberts' pretensions of judicial modesty. Certainly, Trump is in good company with his cynical instrumentalism: McConnell's brute force refusal to consider Merrick Garland's nomination to replace the late Justice Antonin Scalia stems from the same anything-goes conviction. All's fair in love and judicial nominations.

And the future of the high court, and the judiciary generally, is not solely a Republican concern. My colleague Ronald Klain has predicted a "battle of the ages" if Justice Anthony Kennedy retires this summer -- one that Klain believes will motivate Democrats even more than Republicans.

Perhaps, but it is disturbing to understand the judiciary as a spoil of war that can never be permitted to revert to the other side. This is overly mechanistic -- judges don't, or shouldn't, arrive at the bench with a party platform.

More to the point, the court functions best -- it produces better results and stands a better chance of broad societal acceptance -- when justices' views are tested and contested, when they have to defend their interpretations and temper their positions to accommodate alternate ideologies.

A court composed entirely or overwhelmingly of justices appointed by presidents of a single party, whether Republican or Democrat, would not be a better court. It would be a far more flawed -- and therefore more dangerous -- branch.

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Ruth Marcus' email address is ruthmarcus@washpost.com.