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Jack Goldsmith Says Temper Your Supreme Expectations


President Trump will announce his nominee for the Supreme Court tomorrow. Democrats fear his pick, should they be confirmed, will push the court to the right on social issues like affirmative action and abortion. Republicans are excited about the possibility of locking in a conservative majority on the court. Not so fast, says Jack Goldsmith. The Harvard law professor and former assistant attorney general under George W. Bush writes in The Weekly Standard that both those hopes and fears should be tempered. And he joins me now to explain. Welcome.


GARCIA-NAVARRO: The next justice will be conservative. I think it's pretty safe to say that. But you write that conservative justices aren't all conservative in the same way. So could you explain?

GOLDSMITH: Sure. Conservative judicial philosophy can mean a lot of things. Most prominently, what people talk about is that the judge focuses closely on the text and original understanding of the Constitution. But there are other philosophies that are associated with conservatism, as well. One is there's a libertarian strand of conservatism, which basically focuses on freedom from the state. And then there's an important strand of conservatism that says that judges should defer to the legislature and not get way out ahead of the people in terms of recognizing social rights. So, sometimes, the deference strand of conservatism conflicts with the other two.

GARCIA-NAVARRO: You write that liberals are too confident in their despair, and conservatives are too jubilant. And you hinged that on Chief Justice John Roberts, who is conservative but could take on the mantle of the swing vote.

GOLDSMITH: Yes. So his conservative philosophy is one that tends to take a more modest role for the courts and maybe to adhere more to precedent than some of the other justices. He will be the swing vote probably. And that means he's the fifth vote in the middle. And the court probably isn't going to be any more conservative or push in a conservative direction than Chief Justice Roberts is willing to go. And he's given every indication that, sometimes, he'll vote with the liberals but, more importantly, that he really cares about the court's institutional integrity, by which I mean - is it making decisions that are reasoned decisions that won't spark enormous controversy in a way that the court will be seen as illegitimate? If the court is on the way to doing something like that, I think he'll hesitate.

GARCIA-NAVARRO: We do have to talk about Roe v. Wade. You have written that the court will face harsh institutional consequences no matter how it deals with Roe. What does that mean?

GOLDSMITH: What I mean is that if the conservative court doesn't overrule Roe or narrow it significantly, it will be a huge disappointment to conservatives. And if it does narrow Roe a lot or eliminates it, it will be a huge disappointment to the left. The court's in a position now that - I think that no matter what it does on Roe, it's going to be seen as hugely controversial, whether it maintains it or doesn't maintain it. So the court is going to suffer some reputational harm, I think, no matter what it does with Roe. Now, ultimately, that doesn't matter in the sense that the justices can't be removed. They have life tenure. They can do what they want. But the court and especially the chief justice cares about those things.

GARCIA-NAVARRO: And so what's your prediction?

GOLDSMITH: My prediction about Roe is that if this is - I just want to emphasize this is pure speculation. But my prediction is that it'll be much easier for a conservative court to narrow the abortion right, which is what the court's sort of been doing on and off since Roe itself, and to allow states more and more leeway in regulating abortion - but that it might take one or two more conservative justices before there are five votes to actually overrule it.

GARCIA-NAVARRO: Jack Goldsmith is a professor at Harvard Law School. Thank you very much.

GOLDSMITH: Thank you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.