Should Donald Trump be given the opportunity to appoint a new justice to the Supreme Court, potentially joining the three conservative justices he appointed during his initial term, he may opt for “the equivalent of Pete Hegseth,” as noted by Mark Tushnet, referring to the Fox News host currently serving as the US Secretary of Defense.
“Trump, as an individual, has his quirks, to say the least,” Tushnet remarked from Harvard, where he holds the title of William Nelson Cromwell Professor of Law, Emeritus. “In contemplating possible nominees from Trump’s perspective, the notion that comes to mind is someone akin to Pete Hegseth: a legal commentator from Fox News.”
Justice Jeanine Pirro? It’s an idea worth considering. Future historians might debate the impact of “The Box of Wine that Saved Nine.” Perhaps they won’t.
“I wouldn’t completely dismiss it,” Tushnet stated about his Fox News theory, sans the specific reference to Pirro. “While it may not be highly probable, given the dynamics at play and the desire for individuals who aren’t merely judges, it’s certainly not an outlandish notion.”
The mention of “individuals who aren’t simply judges” ties back to arguments presented in Tushnet’s latest book, Who Am I to Judge?, where he critiques the dominance of judicial philosophies, particularly originalism, favored by conservatives, and advocates for reevaluating the criteria for selecting justices.
Tushnet represents a liberal perspective. He provocatively argues that Amy Coney Barrett, the third Trump-appointed justice who played a vital role in eliminating the federal right to abortion in 2022, possesses a breadth of personal experience that differentiates her from most judicial nominees, particularly as a member of People of Praise, a conservative Catholic organization.
“Her association with that group has granted her access to a much wider array of life experiences compared to someone like John Roberts,” Tushnet noted, referring to the Chief Justice who previously served as a Reagan White House aide and a federal judge. “Thus, if the goal is to find individuals who have been exposed to a broad spectrum of human experiences, she emerges as a strong candidate.”
Barrett solidified the 6-3 conservative majority that has enabled Trump to succeed in cases like those rejecting attempts to disqualify him from the ballot due to his role in inciting an insurrection, as well as decisions affirming a degree of legal immunity for presidents. Now, as Trump envisions himself as a monarch and drives an authoritarian agenda against the federal government, engaging with Tushnet’s insights evokes a sense of bleak humor.
Looking ahead to scenarios where Trump’s executive orders may come before the justices, Tushnet anticipates that “the court will erect… speed bumps for the administration. They may not outright declare, ‘You absolutely cannot do this,’ except in cases like the birthright citizenship order.”
That order, issued on Trump’s first day back in office, aims to terminate the right to citizenship for any children born on American soil and under US jurisdiction, a right protected by the 14th Amendment since 1868.
On January 23, a federal judge described Trump’s order as “blatantly unconstitutional,” to the extent that it “boggled” his mind. If it reaches the Supreme Court, Tushnet envisions the rightwing justices “saying: ‘Look, we’re not saying you can do this, but if you want to pursue it, Congress must be on board. You can’t simply act unilaterally.’ So, that would serve as a speed bump.”
Nonetheless, Tushnet often reflects on how, in the U.S., there exist traffic-calming measures that are literally speed bumps, but if one speeds over them, they can easily lose control. He remarks that Trump has empowered rightwing justices to make decisions that “may not qualify as speed bumps if you accelerate past them.”
Tushnet was willing to address a question he believes should be posed to all Supreme Court nominees: what is your favorite book and your favorite movie?
Tushnet’s preferences include Middlemarch by George Eliot and Heaven, a 2002 film directed by Tom Tykwer that he co-wrote with Krzysztof Kieślowski. He authored his book featuring such questions, he explained, “because I have long felt that the [Supreme Court] nomination process has lost its way, often concentrating solely on judges as potential nominees, with a secondary focus on constitutional theories.
“For the last 20 years, the court… has been dominated by individuals with experiences primarily as judges or appellate advocates, which historically was quite rare. While judges have always been part of the mix, there existed candidates with much broader backgrounds, including a former president, William H. Taft [chief justice from 1921 to 1930], and several presidential candidates such as Charles Evans Hughes [1916] and Earl Warren [a vice-presidential pick in 1948], as well as senators like Hugo Black. Those diverse backgrounds have notably vanished from the nomination considerations, a trend I find concerning.”
Tushnet characterizes a “political restructuring of the nomination process, largely instigated by the Republican response to the Warren Court,” which operated from 1953 to 1969 and pioneered significant civil rights reforms.
“They believed the Warren Court wasn’t made up of judges; they were politicians, some referred to them as ‘politicians in robes,’ and the Republican perspective suggested that the solution to diverging from the substantive jurisprudence of the Warren Court was to place judges on the court instead of individuals with broader experiences,” Tushnet explained.
Currently, one justice does not come from a judicial background: Elena Kagan, one of the three beleaguered liberals, served as the dean of Harvard Law School and then as solicitor general under Barack Obama.
Tushnet “entered this exploration anticipating I would discover more exceptional justices with political backgrounds than I ultimately did. In my teaching, I often delved into the justices involved in the Brown v. Board of Education case,” the landmark 1954 ruling that abolished segregation in public schools, “and discovered that none of them had primarily judicial experience prior to that, while seven or eight had substantial political experience. Given that Brown v. Board is viewed as a supreme court milestone, the fact it was determined by a court primarily composed of politicians lends credence to the notion of considering politicians for future appointments.”
“Why not embrace this approach? For me, the main advantage of being a politician isn’t necessarily taking positions aligned with a specific political party but that you’ve developed reasoning across various contexts, enabling you to connect with people from diverse backgrounds and perspectives you must consider as a politician to win their support and accomplish your objectives,” he noted.
Tushnet’s ideal justice might be Charles Evans Hughes, who served as an associate justice from 1910 to 1916 and as chief justice from 1930 to 1941, in addition to being the governor of New York, a Republican presidential candidate, and Secretary of State.
On paper, Tushnet pictures himself posing a question to Hughes – “What constitutional theories guide your interpretation?” – and envisioning an appealing response: “I interpret the constitution to ensure it serves as an effective governance tool in today’s America.”
He argues that modern judges and justices should adopt the same approach, instead of leaning on abstract judicial theories. His new book partially addresses critiques of originalism posited by Erwin Chemerinsky, dean of UC Berkeley Law School: “I delineate a clearer distinction between what I refer to as academic originalism and judicial originalism compared to other commentators.”
Both forms of originalism strive to ascertain what the founders intended when drafting the constitution, advocating for its application to contemporary issues. Tushnet believes “a significant portion of academic originalism escapes many criticisms brought forth by Erwin. While it’s not perfect, it’s an academic endeavor examining complexities, marked by internal disagreements within the field.
“Conversely, judicial originalism is different since it comprises several elements. Firstly, we now recognize its selective application. For instance, to apply originalism to the TikTok ruling necessitates considerable effort. While not unfeasible, it is primarily a non-originalist opinion. Thus, [justices are] selectively originalist, or as I phrase it, opportunistically originalist. They resort to it when the available evidence supports conclusions they are inclined to reach, and the adversary process at the Supreme Court isn’t equipped to verify their stated pursuits. Therefore, as a judicial exercise, originalism falls short of its professed objectives.”
Tushnet considers the late Antonin Scalia, an influential conservative originalist, as “the primary candidate for inclusion on a roster of the greatest justices” over the past half-century, attributing this to his significant influence and contributions to the court.
“However, one detrimental aspect of his legacy is his widely praised writing style. Writing styles evolve over time. Having perused numerous opinions from the 1930s, I recognize an enhancement in readability since then. The premise that opinions become more comprehensible, relatable, and memorable through Scalia-like quips or short, catchy phrases appears misguided. He undoubtedly is impactful, resulting in others attempting to imitate him … Justice Kagan does so in a more measured manner. If one is to adopt this style, I would encourage emulating Justice Kagan rather than Justice Scalia.”
Tushnet concurs that Scalia’s combative spirit may have influenced Samuel Alito, the conservative author of the Dobbs v. Jackson ruling, which abrogated abortion rights, albeit lacking any trace of humor.
In his book, Tushnet illustrates how Alito’s Dobbs decision contained a clear error, an occurrence often attributable to the role of law clerks in drafting opinions, a practice Tushnet engaged in while serving Thurgood Marshall, the first Black Supreme Court Justice.
“The context was notably different then,” Tushnet recounted. “During my tenure, the court resolved 150 cases. Presently, they adjudicate fewer than 50 per annum … That year coincided with Roe v. Wade’s landmark decision [1973], establishing the right to abortion, which had already been fundamentally decided the previous year. Thus, our focus was on finalizing consequential outcomes, and we understood the gravity of these decisions.”
The court is soon expected to face more pivotal decisions. Meanwhile, discussions surrounding a potential constitutional crisis and a president’s defiance of the judiciary are intensifying.
“I don’t believe we’ve reached the crisis stage yet,” Tushnet remarked. “Like many administrations before, the Trump administration is adopting audacious legal stances that may or may not be justified. If they prove untenable, they grumble about their future actions. Such behavior isn’t unprecedented.
“A prime example is Franklin Roosevelt in the 1930s, who, while awaiting a major decision, had his staff draft two press releases: one stating, ‘The court has actually endorsed our position,’ and another stating, ‘The court erroneously rejected our position, and we will proceed anyway.’ Ultimately, they didn’t have to release either since the court sided with the administration. Yet, the mere act of voicing potential resistance isn’t historically abnormal. To enact actual resistance would be profoundly dramatic, but we haven’t arrived at that juncture.”
