Americans want judges who, like Antonin Scalia, don’t accept government arguments on faith.
Following the most divisive election in recent memory, the question naturally arises: Is there anything that President-elect Donald Trump can do to help unite the country? The answer is yes: he can nominate the right kind of judge to fill Justice Antonin Scalia’s vacant seat on the Supreme Court. Specifically, he can nominate someone with a demonstrated commitment to consistently enforcing constitutional limits on government power. Doing so should provide assurance to those who fear we are in for an imperial presidency while satisfying those who believe we just experienced one under President Obama.
It is no accident that some of the most notorious Supreme Court decisions are ones in which the Court has wrongfully upheld the abuse of government power. These cases include Plessy v. Ferguson, which embraced racial segregation under the odious doctrine of “separate but equal”; Korematsu v. United States, which upheld the internment of 120,000 innocent Japanese-Americans during World War II; and Buck v. Bell, which upheld the widespread practice of eugenic sterilization.
All of these justly reviled decisions were the product of unwarranted judicial deference to the government. All of them could have been averted through judicial engagement — impartial, evidence-based judging. An engaged judge will always require the government to provide a constitutionally proper reason for its actions and evidentiary support for its factual assertions.