By Larry . . . Now that Donald Trump has been elected president, what does that mean in terms of ongoing efforts to reform the criminal justice system and the Supreme Court? Will a Trump appointment to the Supreme Court vote to overturn Smith v Doe?
The honest answer is that none of us know nor can the future be predicted with any degree of certainty, particularly in terms of how the Supreme Court may rule on a case that is not yet before them. Predicting the actions of a Trump presidency is extremely difficult because Trump’s campaign was very vague on many issues, and Donald Trump is the first person since Herbert Hoover was elected in 1928 who had not previously held elective office. Since Mr. Trump does not have a record to judge, we must wait and see his specific proposals.
Will a Trump presidency derail the positive steps that have occurred in recent years? Keep in mind that the president does not have control over the penalties that are imposed for state-court convictions, and some states are undertaking initiatives to reduce their costly prison populations. Nonetheless, on the campaign trail, Donald Trump declared himself the “law and order candidate” and said at the Republican convention, “The crime and violence that today afflicts our nation will soon come to an end. Beginning on January 20th, 2017, safety will be restored.”
During the presidential debates, Trump advocated for stop and frisk policies. Trump has been quoted as saying, “Criminals are often returned to society because of forgiving judges. This has to stop. We need to hold judges more accountable, and the best way to make that happen is to elect them. When they hurt us, we need to make sure we can vote them out of the job. The rest of us need to rethink prisons and punishment. The next time you hear someone saying there are too many people in prison, ask them how many thugs they’re willing to relocate to their neighborhood. The answer: None.”
Based on such proclamations from Trump, the odds are that Trump is unlikely to propose actions that will: (1) reduce the rate of incarceration in the federal prison system; (2) assist those who have paid their debts to reintegrate back into society; or (3) reduce the excessively harsh sentences imposed as a result of the Federal Sentencing Guidelines.
There has been an unfilled vacancy on the Supreme Court since the death of Justice Antonio Scalia on February 13, 2016. Before I go further, I will state that the Senate’s refusal to consider the nomination which has been pending since March 16, 2016, is unprecedented in American history. Nonetheless, the question is whether or not a Trump appointee will overturn Smith v Doe. No one can predict that because predicting what a future yet-to-be-appointed justice will do is impossible. Smith was decided on a 6-3 vote, and three of the justices that decided the case are still serving along with Chief Justice Roberts, who represented the state of Alaska at the time and defended their decision to implement the law before the court.
We all recognize that the selection of Supreme Court justices is possibly the most scrutinized of all presidential actions because the appointee may choose to serve for life, and the ramifications on the country are enormous. Having said that, Trump has pledged to appoint strict constructionists who will not legislate from the bench and offered a list that consisted of conservatives in the Scalia mold; Scalia voted with the majority to uphold registration in 2003. One on the shortlist is Bill Pryor of Alabama, a pro-life federal judge currently serving on the Court of Appeals for the 11th Circuit. Pryor has publicly stated that he viewed Roe v. Wade as an “abomination.” Another on Trump’s most recent shortlist is Republican Senator Mike Lee of Utah as well as several state and federal judges, including a few women and minority candidates.
The Sixth Circuit’s favorable decision in the case of Does v Snyder from Michigan could end up before the Supreme Court. If the Supreme Court should uphold the Sixth Circuit, this would have enormous impact on how far states can go with constantly imposing new restrictions. Even though my own experience working in the legal profession is that the more conservative judges tend to be less sympathetic to the plight of those who have been convicted of crimes and tend to give law enforcement the benefit of a doubt, there is hope. Much has changed in terms of sex offender registration since Smith v Doe was decided back in 2003, which has made our arguments that it is punitive more compelling; this means that the high court could provide clarity and limit the reach of these so-called regulatory schemes.
 The America We Deserve, by Donald Trump, p.106-7 , Jul 2, 2000