Although most of his departments lack permanent leaders and he has no coherent policies, the one thing Donald Trump is accomplishing is judge appointments, including two to the Supreme Court. He and Mitch McConnell are a well-oiled machine on this matter. There are two downsides to this.
First, the judicial branch of government must play a more prominent role in lawmaking now that Congress is asleep. Common law, is law established by court rulings and considered applicable to future similar conditions. This is in contrast to legislative law, which at a federal level can offer ironclad prevalence unless judged to be unconstitutional. Roe v. Wade is a good example of common law. Because Congress has never passed a law about abortion (many other countries have), our rules in this area tend to be guided by this 1973 Supreme Court decision. But, given the lack of federal law, states can pass legislative laws about abortions that nip at Roe v. Wade. This is currently happening. As courts do more of Congress’ job by default, we will see two things occur: 1) a conservative slant on common law, if Trump’s judges follow his intent for them; and 2) a chaotic patchwork of common law policies with state legislative overrides. This is no way to run a federal democracy.
Second, the judicial branch may become politicized. Kavanaugh’s rebuttal to sex abuse accusations and to its Congressional inquiry during the Supreme Court nomination hearings had dangerous political undertones, particularly when he blatantly claimed a Democrat vendetta against him. The fear from that moment on is that some Supreme Court votes could contain political retribution. Even if this never happens, doubts will be there. Was the recent Supreme Court decision allowing political gerrymandering a politically biased decision?
If we can’t trust our President to tell the truth, and we can’t trust Congress to pass laws, and we can’t trust the courts to keep justice blind, what will it mean to be a “nation of laws?”