Who Should Donald Trump Choose For the Supreme Court Next?

U.S. President Donald Trump greets Supreme Court Chief Justice John Roberts as he arrives to deliver his State of the Union address to a joint session of the U.S. Congress in the House Chamber of the U.S. Capitol in Washington, U.S. February 4, 2020. REUT
August 18, 2020 Topic: Politics Region: Americas Blog Brand: The Reboot Tags: Donald TrumpSupreme CourtJudgesMike LeeHeritage Foundation

Who Should Donald Trump Choose For the Supreme Court Next?

Here's fourteen good picks.

He is a committed textualist as well. In a 2018 Michigan Law Review article, Thapar and another author reviewed a book by former 7th Circuit Judge Richard Posner in which Posner recommends abandoning a formalist approach in which judges rely on historical meaning, established interpretive tools, and precedent in favor of a more consequentialist, overtly outcome-driven approach.

Thapar offered a robust defense of textualism, arguing that Posner’s approach would prove unworkable and unpredictable and would turn judges into policymakers, thereby violating separation of powers.  His commitment to textualism and skepticism of the administrative state  also are evident in his opinions (see here, hereherehere, and here). 

He has been involved in a couple of abortion-related cases (see here and here), and has written articles and been involved in cases (see hereherehere, and here) involving religious liberty. These include the Catholic University Law Review article in which Thapar suggested that Employment Division v. Smith, an opinion heavily criticized by religious adherents as limiting the Free Exercise Clause, was decided wrongly on originalist grounds. 

You may listen to an interview with Thapar on the “SCOTUS 101” podcast here.

Amy Coney Barrett

Judge, U.S. Court of Appeals for the 7th Circuit (Indiana)Age: 48Education: Rhodes College; Notre Dame Law SchoolClerkships: Laurence Silberman (D.C. Circuit); Antonin Scalia (Supreme Court)

Although most of her career has been spent in academia following her clerkships, Judge Amy Coney Barrett spent a year in private practice, where she was part of the team that represented George W. Bush in Bush v. Gore.

Barrett briefly taught at George Washington University and the University of Virginia before joining the Notre Dame Law faculty in 2002. She also served on the Advisory Committee on the Federal Rules of Appellate Procedure for six years.

Barrett has published in leading law reviews across the country on a variety of topics, and these articles, along with her speeches and judicial opinions, offer insights into her views about the role of the judiciary and the practical work of judges.

In a 1998 article she co-authored, for example, Barrett looked at the “cultural collision” that can occur when a Catholic judge handles a death penalty case, potentially pitting her church’s teaching against her judicial responsibility. The solution, she wrote, is “the recusal of judges whose convictions keep them from doing their job.”

Asked about this article at her Senate confirmation hearing, Barrett responded that if there were an irreconcilable conflict between the law and her personal beliefs, “I would recuse. I would never impose my own personal convictions upon the law.”

In a 2018 speech, Barrett stated that, properly understood, originalism does not involve trying to “think your way into the minds of the Framers.” Rather, she said, it is a recognition that “The text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today.” 

And in a 2010 article, Barrett explained that the “bedrock principle of textualism … is its insistence that federal courts cannot contradict the plain language of a statute, whether in the service of legislative intention or in the exercise of a judicial power to render the law more just. … There is no excuse for departing from the plain text of a constitutional statute.” 

Barrett has extensively explored an issue that has come to dominate the appointment process for Supreme Court nominees: stare decisis, or adherence to precedent.

In a 2003 article, she argued that a rigid or inflexible adherence to precedent actually may deprive litigants of a full opportunity to present the merits of their claims.  Stare decisis, Barrett wrote, must be “flexible in fact, not just in theory.” 

And in a 2013 article, Barrett examined what she called the “weak presumption” that the Supreme Court should follow its precedents that interpret the Constitution, endorsing the view that “a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she clearly thinks is in conflict with it.”

Her opinions on the 7th Circuit demonstrate that Barrett is a judge who pays close attention to the factual record in each case and takes seriously the limited role of a federal appellate court (see herehere, and here).

You may listen to an interview with Barrett on “SCOTUS 101” here.

David Stras

Judge, U.S. Court of Appeals for the 8th CircuitAge: 46Education: University of Kansas; University of Kansas Business School; University of Kansas Law SchoolClerkships: Melvin Brunetti (9th Circuit); J. Michael Luttig (4th Circuit); Clarence Thomas (Supreme Court)

Before joining the 8th Circuit in January 2018, Judge David Stras served as an associate justice on Minnesota’s Supreme Court—a post he came to after spending several years as a professor at the University of Minnesota Law School, where his scholarship focused on federal courts and constitutional law. 

Throughout his judicial career, Stras has demonstrated that he respects the important but limited role that a judge should play, especially when interpreting statutes or the Constitution. As then-Justice Stras wrote in 2014 in a concurring opinion in State v. Ali, the judiciary “does not write statutes; nor do we amend them; no matter the circumstances.”

In a 2011 dissent in Bearder v. State of Minnesota, he wrote that “my role as a judge is not to implement my own policy preferences, but to interpret the law as written.” And in a dissenting opinion in the 2014 case of In re Guardianship of Tschumy, Stras cautioned against the judiciary becoming “a junior varsity legislature.” He has continued his strong textualist approach on the federal bench in a wide range of cases, including ones dealing with a firearms prosecution, a civil commitment for the criminally insane, and immigration matters.

Similarly, Stras has shown a commitment to originalism, co-authoring an article exploring the origins and the Framers’ understanding of the phrase “during good Behaviour” as it pertained to federal judges.  Last year, in Rodgers v. Bryant, Stras dissented from an opinion upholding a statewide injunction, which prompted professor Samuel Bray to write that Stras’ dissent should be “required reading for anyone interested in national or universal injunctions” and was “the most detailed and learned decision yet on the history of equity and the scope of injunctions.”

And earlier this year, Stras wrote a concurring opinion in Adeli v. Silverstar Auto, Inc., in which he stated that although he was bound by precedent to affirm a district court’s decision to reduce a jury’s punitive damages award, he questioned, after citing 19th-century commentaries, law dictionaries, and Supreme Court decisions, whether that was the right result on originalist grounds. 

Stras also has been a defender of free speech, rejecting two First Amendment challenges to Missouri’s informed-consent law for abortions, vindicating the rights of a concerned citizen to speak to legislators without having to register as a lobbyist, and upholding an injunction against an Arkansas law banning campaign contributions more than two years before an election.

With respect to religious liberty, in  last year’s Telescope Media Group v. Lucero, Stras wrote the majority opinion that held that a videographer could not be compelled to videotape and promote same-sex weddings when doing so violated his sincerely held religious beliefs. 

Earlier this year, in a dissent from denial of a petition for a writ of mandamus in In re Hawse, Stras argued that a county stay-at-home ordinance explicitly disfavored adherents seeking to engage in religious services by imposing unique gathering-size limitations on them. 

You may listen to an interview with Stras on “SCOTUS 101” here.

Kevin Newsom

Judge, U.S. Court of Appeals for the 11th CircuitAge: 47Education: Samford University; Harvard Law SchoolClerkships: Diarmuid O’Scannlain (9th Circuit); David Souter (Supreme Court)

Judge Kevin Newsom was nominated to the federal bench by Trump and confirmed in 2017. Before joining the bench, Newsom had a stellar career as an appellate lawyer, working for several years at Covington & Burling and then as Alabama’s solicitor general under then-state Attorney General William Pryor Jr., with whom he now serves on the 11th Circuit. Newsom has argued more than 30 cases before federal appellate courts, including four before the Supreme Court. 

Newsom believes that good judges must embody three virtues: objectivity, humility, and civility. He expounded on these in a speech entitled “The Cardinal Virtues of Good Judging,” which he delivered at an event sponsored by The Heritage Foundation.

On the bench, Newsom has maintained his fidelity to these principles. When interpreting the Constitution or statutes, he adheres strictly to their text because, as he explained in his Heritage speech, this approach “provides the good judge with an essential objective marker, and thus helpfully constrains the judge’s discretion.”

In one notable opinion, Newsom wrote that “as a practical matter, conscientious adherence to the statutory text best ensures that citizens have fair notice of the rules that govern their conduct, incentivizes Congress to write clear laws, and keeps courts within their proper lane.”