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Neither Trump Nor Clinton Understands What the Supreme Court Is Supposed to Do

October 21, 2016

By Jacob Sullum

The next president will appoint at least one and perhaps as many as three Supreme Court justices, who in turn will have a decisive impact on the Court's jurisprudence for decades. But last night's presidential debate revealed that neither of the major-party candidates understands what Supreme Court justices are supposed to do.

Moderator Chris Wallace started the discussion off on the wrong foot by asking the candidates where they "want to see the Court take the country," implying that justices are legislators in black robes, pursuing a policy agenda instead of deciding the controversies that come before them. Both candidates seemed to agree with that premise.

Donald Trump promised that "the justices that I'm going to appoint will be pro-life" and will therefore vote to overturn Roe v. Wade, the 1973 ruling that discovered a right to abortion in the 14th Amendment's Due Process Clause. There are good reasons to think Roe v. Wade was wrongly decided, or at least that its constitutional rationale left much to be desired. But a justice's personal views on abortion are logically and legally distinct from the issue of Roe's soundness. A conscientious justice strives to separate his policy preferences from the question of what the Constitution allows or requires.

Read the full article at Reason.com: Neither Trump Nor Clinton Understands What the Supreme Court Is Supposed to Do