by Michael Dorf
The current issue of the online version of the University of Chicago Law Review, The Dialogue, is a symposium on "Presidential Politics and the 113th Justice." It contains contributions from: Amy Howe; Lisa McElroy; Randy Barnett & Josh Blackman; Michael Paulsen; Kim Roosevelt; Erwin Chemerinsky; Marci Hamilton; and yours truly.
The symposium was conceived in January, before Justice Scalia's death, when the question of how the presidential election would affect the Supreme Court was mostly hypothetical. As the deadline for finishing our respective pieces approached, it became increasingly clear that Donald Trump would be the GOP nominee for president. Accordingly, I decided that this was not the time for me to write an essay about how various doctrines would change with a new liberal or conservative justice, the proper role of the Senate in confirming justices, or even the extraordinary tactic of Senate Republicans to deny Judge Garland a hearing. The other contributions to the symposium tackle these and related questions, and they do a great job. I urge readers to check out their essays.
I concluded that while the election (for president and a third of the Senate) would have a very substantial impact on constitutional law through the Supreme Court appointments process, focusing just on appointments would miss the larger meaning of the current election for our constitutional democracy. As I explain in my essay, constitutional change occurs through a variety of mechanisms, including consolidation behind or backlash against a particular constitutional vision. I treat the 2016 presidential election as a referendum on Donald Trump's anti-egalitarian constitutionalism.
Lest readers of this post who have not yet read my essay fall out of their chairs laughing at the association of Trump with any kind of constitutionalism, let me be clear that I do not attribute views about the Constitution to Trump himself. I think that the answer to Khizr Khan's rhetorical question whether Trump has even read the Constitution is probably "no." (The fact that Trump says he has read the Constitution does not count as evidence for "yes," given the seemingly inverse correlation between the words he speaks and the truth.) My essay refers to Trump as "a constitutional dunce." And I put the essay to bed before Trump revealed that he thinks the Constitution includes at least five more articles than it in fact contains.
Here I want to go beyond Trump's constitutional ignorance. After all, Trump is not simply a dunce about the Constitution. He is a multidimensional dunce. Just in the last couple of weeks, we learned that Trump doesn't understand why the use of nuclear weapons by the U.S. would be catastrophic, that he doesn't realize that Russia has troops in Ukraine, and that he doesn't even know whether he has ever met Vladimir Putin (having said yes and then no). Even in his area of supposed expertise, Trump is a dunce. He believes that an unscrupulous business practice that has worked (more or less) for him in the private sector--refusing to pay creditors full value and thus requiring them to take a haircut in order to get anything--could be applied to public finance without realizing that doing so would throw the U.S. and global economy into chaos. And when that plan was exposed as horrific, he pretended that he was really proposing something else that was equally dangerous.
The word "dunce" can be used to mean "stupid" as well as "ignorant." I do not know whether Trump is stupid. He constantly boasts of his intelligence, typically citing the fact that he received his undergraduate degree from the University of Pennsylvania's Wharton School (where he transferred after two years at Fordham). Although a story last year in The Daily Pennsylvanian indicates that Trump made almost no impression on his classmates and may have only been admitted as "a special favor" to his older brother, let us stipulate that Trump is not especially unintelligent. True, he has great difficulty completing a sentence, but perhaps that has more to do with his limited attention span and lack of discipline than with his intelligence (even assuming that there is some general all-purpose quality of mind that we can call "intelligence.") I'm willing to assume arguendo that Trump would not be substantially less intelligent than our least intelligent presidents, because I want to focus on Trump's ignorance.
Let's run through the arguments about why Trump's ignorance does or doesn't matter.
Claim: It doesn't matter that Trump would come to the office of the presidency terribly uninformed about the basics of nearly all domestic and foreign policy questions--lacking most of the knowledge base of, say, an average political science major at a decent public university--because he would have the advice of experts.
Counterclaim: No he wouldn't. Despite his frequent claim to have the "best" people working for him, Trump surrounds himself with sycophants and hacks.
Resolution: The counterclaim is right, but it's at least possible that some of the sycophants would have the minimal requisite knowledge. Chris Christie is a reasonable test case. Although hardly a scholar, Christie is well enough informed that if he had secured the GOP nomination, his knowledge or ignorance would not be a major topic. Yet even if we assume reasonably knowledgeable sycophants are advising Trump, wouldn't their sycophancy prevent them from telling Trump what he needs to hear? And is there any evidence from the campaign that Trump is capable of taking advice from people who know more than he does? Any ignorant president would be subject to the Dunning-Kruger effect, but Trump, as its seeming embodiment, would have extra difficulty realizing that he is uninformed.
Nevertheless, let's assume that somehow Trump could be made to listen to his experts, who in turn gave him reasonable advice. One line of thinking goes that his lack of basic understanding would render him unable to choose a course when his experts disagree. I find this argument not especially worrying. It's true that Trump's choice would at that point come down to nothing better than a coin toss, but that would actually be reassuring. The real danger is not that Trump would choose the wrong policy option from a list of policy options proposed by competing experts. The greater danger is that Trump would choose an option that no reasonably well-informed expert would possibly advise--either because some of his sycophant/hack advisers are not reasonably well-informed and he follows their advice or because he doesn't follow anyone's advice.
Bottom Line: Intelligence and knowledge are no guarantee of sound policy. That was and remains the valid argument of David Halberstam's The Best and the Brightest. Conversely, even a comparatively ignorant dullard in the Oval Office could probably do a fair job with good advisers, a willingness to listen, and sound judgment. But Trump is no ordinary ignoramus. His personality defects would potentially compound his policy ignorance with disastrous effects.