Wherever two or more sensible, right-of-center Americans gather these days, “the talk” is likely to ensue.
You know the one. First, bitter lamentations over the intolerable prospect of a Hillary Clinton presidency. Then, plaintive bellowing over the impossibility of voting for the barbarian alternative.
But then comes the pause, and … “except for the court.”
It may not be too much to say that “the court” is the main thing standing between the presumptive GOP presidential nominee and a truly sweeping, landslide desertion by mainstream conservatives. Fear runs high in center-right quarters that with the late Antonin Scalia’s high-court seat open and three additional justices near or beyond 80 years of age, the next president could shape the Supreme Court’s dominant philosophy for decades on end.
And that could reshape the nation in small ways and large — think only about rulings in recent years on campaign finance, Obamacare, same-sex marriage, gun control, etc., etc. Few direct presidential actions over the next four or eight years will matter as much, or for as long, as his or her court nominations.
This is why more than a few otherwise prudent conservatives and conservative leaners, appalled by Donald Trump’s coarse and reckless demagoguery, are still considering voting for him, to prevent Clinton’s establishing a solid high-court majority of “living Constitution” judges — jurists who can’t help often concluding that America’s ever-evolving fundamental law must be evolving in a progressive direction, giving judges license to impose “advances” the people didn’t yet know they desired.
But what kind of judges would a President Trump appoint? Sensing (or being well-advised) that this was not a topic on which his customary rambling rants would suffice, Trump published a list in May of real live federal and state judges who fit his model.
Minnesotans might gain particular insight into the Trumpian view of legal issues because one name on the list is that of Justice David Stras of the Minnesota Supreme Court.
And as it happens, just last month the U.S. Supreme Court ruled on a Minnesota case — and disagreed with Stras — in the process revealing something worth knowing about him (especially, perhaps, amid this past week’s intensified concerns over police-community tensions and abuses of law enforcement powers).
The case put Minnesota’s “implied consent” drunken-driving law on trial, asking whether police need a warrant to demand that drivers agree to a breath test of their blood alcohol level or face criminal charges for refusing. As I explained when the case was argued this spring, the U.S. court had ruled in an earlier case that warrants were required to compel a driver to surrender a blood sample.
But that ruling had been made by a narrow majority that included the since-departed Scalia. It seemed likely Minnesota’s law might now survive, maybe on a tie vote.
It did survive, but not on a tie vote. A majority of justices instead agreed to a split-the-baby decision, ruling that warrantless blood tests violate the Constitution’s Fourth Amendment ban on “unreasonable searches” but warrantless breath tests do not.
Breathalyzer tests are less invasive than blood tests, the court reasoned, and the smaller infringement on privacy doesn’t justify the cost and hassle of securing so many warrants in the vital law enforcement effort to combat drunken driving.
That’s pretty much what a majority of the Minnesota Supreme Court had held in 2015. But Stras had dissented. Joined by Justice Alan Page, the state high court’s longtime leading liberal, he argued that Minnesota’s law was unconstitutional under then-existing precedent.
Stras and Page faulted their colleagues for an opinion “as notable for its disregard of [U.S.] Supreme Court precedent as it is for its defective logic.”
But it turns out it was Stras and Page who misjudged the higher court, expecting more logic and consistency than the court delivered last month, and underestimating the court’s preference these days for concocting judge-made “balancing tests” rather than laying down clear legal rules.
It’s worth noting that more logic, consistency and clarity — and less surrendering of constitutional principles to government convenience — is just what many conservatives want (or anyhow say they want) from the high court.
Stras was appointed in 2010 by Republican Gov. Tim Pawlenty. Initial controversy was stirred by his youth (he’s still just 42) and ties to conservative legal circles, including a stint clerking for Supreme Court Justice Clarence Thomas. But Stras has proved thoughtful and unpredictable on the bench — except perhaps as something of a stickler for following the literal language of laws and refraining from convenient rewriting from the bench.
This focus was apparent in a contentious, 4-3 case in 2012 where Stras, writing for two colleagues, dissented from a ruling that upheld a law making it a crime to dishonestly report police misconduct.
Stras wrote that the majority had overstepped “the proper limited role of the judiciary” by rewriting the statute in order to save it. He deemed it unconstitutional and issued a ringing defense of free speech, above all speech involving “criticism of the government.”
There’s no room here for a deep analysis of the record. But Stras is an interesting judge. Far from a rubber stamp for law enforcement, he almost comes across as a fussbudget for precedent and text and that “proper, limited role of the judiciary.”
There are worse habits. And it is a rare bit of encouraging news if this might be the kind of judicial temperament Trump would seek to elevate.
D.J. Tice is at Doug.Tice@startribune.com.