Tonight Trump will tell the nation the name of his pick for the open seat on the Supreme Court. He will choose someone who is as much a lock as possible to support overturning Roe v. Wade and other critical decisions that do not fit with the views of his base and other groups who side with Trump because he will forward their political agendas. Why will he do this? Not because he does/does not support those views, but because it will ensure his base continues to support him, no matter the actual size or proportion of that base as related to the rest of the country. As I write this, we have no idea if that person will be confirmed by the Senate and how he/she really will vote on key issues. But everyone knows the goal.
This makes me wonder what the criteria should be for selecting a Supreme Court justice. Of course, I want someone who supports my views of the universe, but for a moment I am going to pretend that is not the case. Which leads me to the unbiased answer to this question being: Supreme Court justices should be people who interpret the Constitution and consider precedent based on (a) the intent of the framers and (b) evolution of societal thinking. Sounds pretty straightforward, but it is both (a) complex and (b) open to manipulation.
It is complex because interpreting the constituion without bias is tough. I respect that people have differing views of what the framers intended and how strictly we adhere to that principle, and I vehemently disagree with many who take an overly strict position, but at least I respect the argument. The problem is when we see people contort their interpretation of the constitution to support their bias – they already know the answer on a particular issue and just create an argument to support it. That is what Trump is doing, but it is not what a Supreme Court justice should do.
The exact same principle applies to deciding how important precedent is and what the role of changing society views is. It is easy to point to segregation, for example, and other decisions that were clearly supporting inhumane or flat out wrong views, and say they had to be overturned. And we can look at such things as LGBTQ rights and recognize that society (and maybe people) have evolved, so that needs to be reflected in the SCOTUS decisions. But we have to be careful about making a very dangerous mistake similar to interpreting the constitution through a bias about certain issues. Evolution of society and values is not the same as taking a poll. A poll 75 years ago would have kept blacks as second class citizens. A poll 25 years ago would have said LGBTQ folks were sick or didn’t deserve full rights. Evolution is something that happens without necessarily being an immediate majority. So the Supreme Court justices must look to that, and not just change precedent because the majority (or, in this case, a vocal minority) screams for it. But that is exactly what Trump is doing.
I want Roe v. Wade to stand and strengthen. I want other things that would come out of a center or center left SCOTUS. But I will fully support even decisions I do not agree with if they are reached through the right process by issue-neutral (and that is the key phrase) justices. The danger of Trump? That is not his goal. And it could affect us for decades, moving us backwards, and creating a precedent that future despotic leaders might follow that results in a diminished America, a degradation of values, and the decline of our standing in the world. Empires have fallen on less than this.