President Trump rightly calls appointing Supreme Court justices one of a president’s more important duties.

Activist justices lean toward basing decisions on their own policy preferences, while originalist justices lean toward basing decisions on the meaning of law as written.

The president has appointed three justices. It’s hard to be completely sure how a justice will turn out. Yet consistent with the president’s promise, all three appear to be originalists, not activists.

As a result, the court appears to have six originalists – five solid and one less so – plus three activists, and none in-between. So the count of justices who are originalist, in-between, and activist is 6-0-3.

This is significant, because five are a majority of nine, and six have one extra, which can occasionally be necessary.

If Hillary Clinton had won the 2016 presidential election and filled the three seats that President Trump has filled, the count would likely have been 3-0-6.

This matters. For example, when the count was 4-1-4 in 2008 and 2010, the court held, 5 to 4, that the Second Amendment protects an individual’s right to keep and bear arms, and limits the power of both the federal and state governments.

Ask yourself: What could a court with a 3-0-6 count have done to the Second Amendment? What could a court with a 3-0-6 count otherwise have done to the law, including the Constitution?

Dissatisfied with a 6-0-3 count, activists talk of packing the court. That means adding more justices, a move that activist Justice Ruth Bader Ginsburg opposed.

Referring to the 1930s court-packing proposal, then-Sen. Joe Biden, D-Del., said in 1983, “It was a bonehead idea. It was a terrible, terrible mistake to make.”

But as a 2020 presidential candidate, Biden refused to speak out. Rather, he suggested in late October a commission on the courts.

Some argue against court packing by calling it a power grab. Yet there are at least three other arguments:

¯ Once we start down the court-packing path, where’s the stopping point?

¯ More fundamentally: Regardless of political party or political philosophy, court packing is unconstitutional, because it disrupts the balance of powers among government’s three branches. This balance helps keep government within its limited and enumerated powers and helps protect ordered liberty.

¯ Besides, if activists genuinely thought the court needed more justices, they should have advocated that long ago. However, not surprisingly, they didn’t do so when it had fewer originalists and more activists. In this sense and in the language of constitutional law, court packing is unconstitutional, because it’s “underinclusive.”

Which brings us to this question: Since 1968, when the count was 0-3-6, Republican presidents have made 15 of the 19 court appointments. Why did it take so long for the court to have an originalist majority?

One answer is that either the Nixon and Ford administrations, or the Reagan and Bush 41 administrations, could have given us an originalist majority.

But the Nixon and Ford administrations appointed one originalist, two activists, and two in-between, while the Reagan and Bush 41 administrations appointed two originalists, one activist, and two in-between.

So their 10 court appointees included three originalists. Activist decisions of the other seven endure as precedent.

Activists’ good fortune through four Republican administrations should continue to astound them.

By contrast, the Bush 43 administration appointed two originalists, one solid and one less so.

And the Trump administration appears to have been on target with three solid-originalist appointees.

Thus, President Trump appears to have gotten it right. In this sense, his appointees taken together appear to be better than any president’s in living memory.

But there’s more.

The in-between and activist appointees of the Nixon, Ford, Reagan, and Bush 41 administrations retired differently.

The in-betweens retired when a Republican was president. Although the consequences of their activist decisions endure, at least now all of these seats are held by originalists.

However, the activists retired when a Democrat was president. The consequences of their activist decisions endure, and all of these seats are held by activists.

These are all the more reasons that President Trump is right when he calls appointing Supreme Court justices one of a president’s more important duties.

The legacy goes on and on.

Dr. Randy Elf’s charts on Supreme Court appointments since 1968 are at https://works.bepress.com/elf/65. His October 2020 column on filling the 2020 vacancy is at https://www.post-journal.com/opinion/local-commentaries/2020/10/the-gop-must-keep-its-promise.

COPYRIGHT ç 2020 BY RANDY ELF