Let the end be legitimate: the U.S. Supreme Court, Donald Trump and constitutionalization of politics

One of the main goals of Ronald Reagan's presidency was to initiate conservative revolution in federal courts in order to "re-write the Constitution" (Schwartz 1988). Although the President was able to make four appointments to the Supreme Court, influencing its adjudication in economic matters, most of the decisions on social issues which Reagan's administration criticized remained untouched (abortion, affirmative action, school prayer) or became liberalized (LGBT rights, death penalty). Furthermore, one of Reagan's candidates to the Supreme Court was rejected by the Senate in a brutal political nomination game (Shipan, Shannon 2003). More than three decades later, during the tenure of Donald Trump, the Supreme Court became (again) an arena of political rivalry between conservatives and liberals, which was especially visible during the appointment process of Amy Coney Barrett as an Associate Justice. Paradoxically, it was not Barrett who could mark a significant change to Court's adjudication, but another Trump's appointee, Brett Kavanaugh, who earlier replaced the retired Justice Anthony Kennedy. As a result, the ideological balance on the Court moved to the right, giving the potential to the conservative majority to review and overrule crucial cases concerning social relations in the United States. The paper aims to analyze the impact of ideology on the Supreme Court appointments made by Donald Trump and possible direction of constitutional interpretation in the coming years. The Author believes, that despite only one tenure, Trump's judicial legacy may have a fundamental effect on the meaning of Bill of Rights, especially with regard to social issues, such as abortion, the right to privacy, same-sex marriage, or procedural rights, thus continuing the conservative revolution initiated in the 1980s by Ronald Reagan. By reviewing the popular paradigms of judicialization of politics and politicization of judiciary, the Author is also willing to present a third paradigm of so-called constitutionalization of politics. It is a process of constitutional interpretation conducted by non-judicial institutions which act as if they had power to review and re-write the Constitution using it as a tool to obtain their political goals. Apart from appointing “proper” judges, presidents often interpreted the supreme law of the land in a more conservative or liberal way trying to legitimize their policies. By referring to the famous “legitimate end” theory introduced by John Marshall in McCulloch v. Maryland, the Author plans to present Donald Trump’s actions as clear examples of constitutionalization of politics, both in the process of Supreme Court appointments, as well as in his own approach to the process of constitutional interpretation.