WASHINGTON — For the first time since winning the election, Donald Trump has weighed in on two of the most controversial social issues the Supreme Court has taken on ever: gay marriage, and abortion.
His answers could leave conservatives worried.
Trump indicated he’s “fine” with the high court’s opinion legalizing same-sex marriage and called it “settled,” but committed to appointing justices who want to change the 1973 Roe v. Wade ruling affirming abortion rights.
The inconsistency in the question — what is settled law? — is sure to concern judicial conservatives who fear he may not live up to his promise to fill the empty Supreme Court seat with someone in the mold of their hero, Justice Antonin Scalia.
Above all else, judicial conservatives hope that Trump’s eventual nominees to the Court will apply the Constitution as they believe it is written and enforce the limits on government power. They see both the 2015 same-sex marriage ruling — Obergefell v. Hodges — and Roe v. Wade as total failures in that regard. The fact that Trump interprets the cases differently might be some cause of concern.
“Conservative legal scholars have long criticized Roe v. Wade for many of the same reasons that they’ve criticized the gay marriage decision. It’s not at all clear what interpretation of the Constitution leads to the marriage decision, but not a woman’s right to choose,” said Steve Vladeck, a law professor at the University of Texas School of Law and a CNN contributor.
Supreme Court justices build off of precedent, and are often wary of overturning prior decisions in order to seek stability and continuity in the law. It’s a legal principle called “stare decisis,” which roughly translates into “to stand by things decided.” But those reversals do occur. Of all the justices on the court, Justice Clarence Thomas gives the least deference to stare decisis.
On the one hand, Trump told Leslie Stahl during an interview aired Sunday on “60 Minutes,” the issue of marriage equality, “was already settled.”
“You have these cases that have already gone to the Supreme Court. They’ve been settled, and I’m fine with that,” Trump said.
But on abortion, he thought differently.
When Stahl pushed him on the topic, rather than saying the 43-year-old Roe v Wade ruling is “settled,” Trump said that the justice or justices he appoints to the bench will be “pro life,” leaving open the possibility it could be overturned. He said that if the decision is overturned, the issue will be returned to the states.
“Then some women won’t be able to get an abortion,” Stahl pressed.
“Yeah. Well perhaps they have to go to another state,” Trump responded.
Trump — with the help of conservative groups such as the Heritage Foundation and the Federalist Society — has put forward a list of 21 potential Supreme Court nominees. Many of the judges on that list might not see a difference between the Roe decision and Obergefell.
On abortion, it’s not so much about being “pro life” as it is about interpreting the Constitution with an originalist’s approach. Judicial conservatives, like Thomas and Scalia, reject the core holding in Roe that there is a right to privacy in the Constitution that would protect a woman’s right to abortion.
And on the issue of gay marriage, they reject the notion that the Constitution limits the ability of states to restrict same-sex marriage.
Scalia himself wrote a scathing dissent in Obergefell case. “Today’s decree says that my Ruler and the Rule of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” he wrote.
“This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves,” Scalia added.
Josh Blackman an associate professor of Law at the South Texas College of Law in Houston, said that Trump’s remarks are not entirely clear but could be understood to suggest that even though Roe v. Wade was decided years ago, it is still quite contested.
“By contrast, Obergefell — as it relates to same-sex marriage — has largely been accepted as settled,” he said, noting the exception of Kim Davis and other clerks who have refused to issue marriage certificates.
That means that while same-sex marriage itself might not be coming back to the Supreme Court any time soon, restrictions to abortion, meant to narrow Roe, could very well return to the court sooner rather than later.