One Vote Away: How a Single Supreme Court Seat Can Change History

by Ted Cruz

  Then-candidate Trump explicitly committed in writing that Scalia’s replacement would come only from that list, that nobody else would be considered. For me, after dropping out of a hard-fought presidential race, securing a conservative jurist to replace the great Scalia was paramount.

  We were closely coordinating with the Trump campaign, and within minutes of their announcement, I put out my endorsement in a lengthy Facebook post that I had written explaining why I believed conservatives should support Donald Trump. Judicial nominations were the number-one reason. Here’s what I wrote that day:

  First, and most important, the Supreme Court. For anyone concerned about the Bill of Rights—free speech, religious liberty, the Second Amendment—the Court hangs in the balance. I have spent my professional career fighting before the Court to defend the Constitution. We are only one Justice away from losing our most basic rights, and the next President will appoint as many as four new Justices. We know, without a doubt, that every Clinton appointee would be a left-wing ideologue. Trump, in contrast, has promised to appoint justices “in the mold of Scalia.”

  For some time, I have been seeking greater specificity on this issue, and today the Trump campaign provided that, releasing a very strong list of potential Supreme Court nominees—including Senator Mike Lee, who would make an extraordinary justice—and making an explicit commitment to nominate only from that list. This commitment matters, and it provides a serious reason for voters to choose to support Trump.

  * * *

  Over the next two months, I campaigned for Trump, and I energetically urged conservatives to come out and support him. And they did, in record numbers.

  The week after the November election, I flew to New York, went to Trump Tower, and met with the president-elect and his team. I spent four and a half hours with them that day and had dinner with his team that evening.

  I told him, “Mr. President, we’ve been given an historic opportunity. This happens very, very rarely: unified control of the House, the Senate, and the presidency. We can’t waste it. I want to do everything humanly possible to lead the fight in the Senate for us to actually deliver on the promises we made.”

  The conversation then shifted to whether I would consider a job in the administration. The president asked if I would be interested in secretary of Homeland Security. Although I care deeply about securing the border, I said no. I thought I could have significantly more impact in the Senate.

  I told him the one job I might consider was attorney general. Frankly, I made what I’d characterize as a half-hearted play for the position. I said, “Mr. President, there are a lot of people who were on board way before I was. And so if Sessions or Giuliani or Christie want it, it should probably go to them. But if you wanted me as AG, I’d be willing to discuss it.” We did discuss it for some time, but it seemed clear to me even then that he wanted Jeff Sessions in that slot, which was his prerogative. Sessions is a good man, but, unfortunately, we saw over the next two years that he was not at all prepared for the job of attorney general.

  Instead, Trump pressed me in a different direction. He asked if I was interested in the Supreme Court vacancy. I paused for a second, and then said no. I told him I didn’t want it. He pressed me further on the matter, as did his senior team that afternoon. But I told them flat no, I didn’t want to be on the Court.

  That may seem surprising to some folks. But it was not the first time I had passed on the judiciary. When I was Texas solicitor general a decade earlier, the Bush administration had inquired if I was interested in the Fifth Circuit Federal Court of Appeals. I told them I was flattered by the interest, but I didn’t want to be a judge.

  Though I hold judges in the highest esteem, there’s a simple reason why I don’t want to be a judge: principled judges stay out of policy and political fights. If I were ever a judge, that’s exactly what I’d do; I would follow the law, no matter what.

  But I don’t want to stay out of policy and political fights. I want to lead them. I want to fight for lower taxes and regulations, for more jobs, for economic growth, for individual liberty, for a strong national defense. And, in our constitutional system, the Senate is the right place to do that. I care deeply about having principled judges on the bench—and I want to be part of nominating and confirming hundreds of them hopefully for many years to come—but I don’t particularly want to be one of them.

  Nevertheless, when I returned home to Texas after visiting Trump Tower, the discussion weighed heavily on me. I don’t want to overstate matters; Trump didn’t offer me a seat on the Court. But he and his team made it clear that it was a real possibility. And, politically, you could see why they considered it. At a time when there was still significant perceived tension between us, having me safely ensconced and permanently silenced in a lifetime judicial appointment no doubt appealed to the Trump team. If things between the incoming administration and the Senate fell apart, I would be sidelined as a potential critic or challenger.

  I had said no, but the thought lingered; this was Justice Scalia’s seat, a man I’d revered for my entire adult life. To even imagine occupying his chambers and trying to continue his legacy was breathtaking.

  For the next couple of weeks, I continued to think about it, and I wrestled with it and prayed about it. Most of my close friends and family thought I was nuts for saying no to the Court. Heidi understood, and so did my parents, but just about everyone else said, “Are you sure?” The next weekend, I invited my pastor to come over to our house to pray with me about the choice. He had an interesting perspective. He said, “I understand your choice. For me, I imagine if someone offered me the chance to become one of the leading theologians in the world, which could have a profound impact on millions for decades to come. If doing so meant that I had to give up being a pastor, no longer be a shepherd to our congregation, I would pass on the opportunity because it’s not my calling.”

  The more I considered it, the more certain I became in the choice. And, I knew I had to make the decision irrespective of any future run for the presidency. I’ve run once, and we came incredibly close to winning, and it’s no secret that I hope to run again in the future. But the only right way to make this decision and not second-guess myself for the rest of my life was to assume that a viable path to the presidency would never materialize, that the last meaningful public position I would ever hold would be where I am right now, in the Senate.

  I came to the conclusion that I could add greater comparative value in the Senate. There are a number of good, principled people who very much want to be judges and who would stay faithful to the Constitution. There are depressingly few principled leaders in electoral politics. It’s a brutal, ugly game. You have to raise money constantly, and you get demonized on a daily basis. Most people with any sense say forget it and choose to do something else. Stop and think, in fight after fight—the public policy battles that really matter—who consistently steps forward and leads when it’s hard? Because we desperately need political leaders who will charge into battle, who will make the public case for liberty, who will work to move people’s hearts and minds to embrace our constitutional freedoms.

  That’s why I spent 2017 doing three CNN town-hall debates with Bernie Sanders on Obamacare and on taxes. Those debates were among the highest rated programs on CNN the entire year. And that’s also why I launched a podcast (Verdict with Ted Cruz) during impeachment that at the time became the number one–ranked podcast in the world. That podcast continues every week, and to date, we’ve gotten over 15 million downloads.

  Reagan inspired a generation of young conservatives dedicated to Liberty, and I want to do all I can to do the same. For decades on the other side of the aisle, in the Senate, Ted Kennedy mentored and launched hundreds of committed liberals who went on to have an extraordinary (and unfortunately harmful) impact on our nation; I resolved to do precisely the opposite, and I’ve worked hard to mentor scores of young conservatives and libertarians, who in turn have gone on to serve in Congres
s, as Texas solicitor general, as journalists, as federal judges and U.S. attorneys, and in dozens of senior roles throughout the Trump administration.

  And so I came to a real peace with saying no to the Court. Perhaps at a different phase in life I might think differently, but the Court is not where I personally believed I could make the biggest difference.

  The question was briefly revisited in June of 2020. While vacationing with my family near my in-laws’ home in California, I received a call on my cellphone from President Trump. While I stood in flip-flops and my girls water skied on a pristine lake behind me, Trump told me he was expanding his list of potential Supreme Court nominees and asked if he could include me on the new list. I told him, “If it’s helpful, sure, you can add me to the list. But I don’t want the job, and I wouldn’t take it.” Unlike our conversation four years earlier, this time I didn’t hesitate.

  * * *

  Two weeks into his presidency, on January 31, 2017, President Trump nominated Judge Neil Gorsuch—one of the twenty-one judges on the list—to fill Justice Scalia’s seat. Democrats fought passionately against his confirmation, going so far as to launch the only partisan filibuster of a Supreme Court nominee in our nation’s history. I helped lead the fight to confirm him, making the case both on the Senate Judiciary Committee and on the Senate floor, where we ultimately had to change the rules to overcome the Democratic blockade. The Senate confirmed Justice Gorsuch, 54–45.

  Why was the two-year battle to fill Scalia’s vacancy so hard-fought? Because today, the Supreme Court has become the preeminent arbiter of our constitutional rights. And the type of justice who serves has a profound impact on public policy and our fundamental liberties.

  This would have surprised the Framers of our Constitution. In Federalist No. 78, Founding Father Alexander Hamilton famously described the judicial branch as the “least dangerous” of the three branches of the federal government because it “may truly be said to have neither force nor will, but merely judgment.” That is true—in theory, at least. But history has not always borne out Hamilton’s prognostication.

  Starting in the 1960s, America saw the rise of activist judges. Under our constitutional system, judges are not supposed to decide policy matters. They are not supposed to make decisions based on their own political preferences. Instead, contested questions of public policy are meant to be left to the elected branches of government so that the voters can hold them accountable.

  Judges are supposed simply to apply the law. As Chief Justice Roberts rightly put it at his confirmation hearing, a judge’s job is like a baseball umpire, merely to “call balls and strikes” (sadly, a standard he has not always lived up to).

  Americans have sharply different views on many policy issues, from abortion, to marriage, to religious faith, to the death penalty, to immigration, to the fundamental divide between socialism and free enterprise. In a democracy, those decisions should be made by the voters, not by unelected judges with life tenure.

  But decades ago, activists on the far left decided that democracy was too cumbersome. It was too slow. And it was too difficult to persuade their fellow citizens that their policy prescriptions were sound and wise. So instead, they resorted to litigation, trying to get judges to mandate the public policy outcomes they wanted—even if the voters disagreed.

  To be sure, judges should strike down laws that violate the Constitution. Some journalists and commentators have tried to define judicial activism as any time that a court strikes down any law. And, in an embrace of moral relativism—a justification that “everybody does it”—they have argued that Republicans want conservative judicial activists just like Democrats want liberal activists.

  For anyone principled, that is not the case. It is “activist” any time a judge disregards the law to follow his or her own policy preferences. That means it is activist whenever a judge creates a new legal “right” not found in the Constitution. And it is also activist whenever a judge tries to erase an actual right protected in the text of the Constitution.

  I don’t want Republican judges or Democratic judges. There are many policy issues about which I personally am passionate (e.g., low taxes, low regulations, lots of jobs, school choice, securing the borders, a strong national defense). But it’s not the role of a judge to mandate policy outcomes with which I happen to agree. Instead, I want constitutionalist judges who will honor their oaths to follow the Constitution.

  The Court was right in Brown v. Board of Education (1954) when it struck down segregated public schools because they violated the Fourteenth Amendment’s guarantee of “equal protection of the laws.” The Court had been wrong in Plessy v. Ferguson (1896)—which Brown overruled—when it previously upheld segregated schools because the Justices personally supported the policy of segregation.

  The Court was also right when it struck down the District of Columbia’s draconian laws prohibiting gun ownership in D.C., in Heller v. District of Columbia (2008) because it violates the Second Amendment right “to keep and bear arms.”

  Conversely, the Court was wrong in Roe v. Wade (1973) when it created a brand new “right” to abortion found nowhere in the text of the Constitution. For two centuries, state legislatures, elected by the people, had decided questions of abortion policy. The justices took that power away by fiat.

  For the same reason, the Court was wrong in Obergefell v. Hodges (2015) when it mandated same-sex marriage laws nationwide. You may personally agree or disagree with gay marriage, but, for two centuries, marriage laws had been policy decisions for elected legislatures—which meant different states could come to different conclusions about the proper standards. Instead, a majority of justices decided to strike down every state marriage law with which they disagreed.

  All of us know that the Supreme Court is supposed to protect our constitutional rights. It is also charged with securing our Constitution’s defining structural features, federalism and the separation of powers. Both doctrines protect Liberty by dividing power, by establishing checks and balances to prevent any branch of government from becoming too powerful. The alternative, unchecked government power—while commonplace in dictatorships across the globe—would fundamentally alter the nature of our nation and what it means to be an American.

  Over the past six decades, the Court has arrogated to itself far too much power—well beyond what it is entitled to under the Constitution. It has seized this power at the expense of Congress, the executive branch, the states, and We the People alike.

  While it has grown in power, the actual functioning—the how and why—of the Court remains a mystery to many. They don’t understand just how precarious our constitutional liberties and core constitutional structures can be when they fall into the hands of rogue judicial activists. This book aims to explain what really happens at the Supreme Court—by relying on my own experience as a longtime Supreme Court advocate.

  One doesn’t need to be a lawyer to enjoy this book. Or, I hope, to learn something meaningful from it. All you need is to have is an interest in preserving the constitutional liberties we enjoy as Americans. Or to have an appreciation for federalism, separation of powers, and national sovereignty. If you’re interested in the Constitution, or in Liberty, or in your own fundamental rights, then this book is for you.

  This book will discuss fundamental rights and contentious policy issues that go to the heart of our Republic: free speech, freedom of religion, the right to keep and bear arms, abortion, U.S. sovereignty and international law, the death penalty, race, and democratic control over our elections.

  It will examine eight critical constitutional issues and landmark Supreme Court cases that every American should know. Some of these decisions were good, and some of them were bad. Most of them were decided by just one vote. Almost all of them I helped litigate.

  It gives the back story behind these vital cases. What was really going on. Why they matter. What the Court did. How it changed America. And how so many of our precious liberties and freedoms
hang so precariously in the balance.

  The reader will understand why judicial selection matters so much—and how to make sure we get our Supreme Court picks right going forward.

  * * *

  Before I was elected to the Senate, I made my career as a Supreme Court litigator, and I had the blessing to play a part in defending many of our foundational liberties. I had the opportunity to defend many of our foundational constitutional structures.

  In 1996, just a year out of law school, I began as a law clerk on the Supreme Court, clerking for Chief Justice William H. Rehnquist. “The Chief,” as we called him, was one of the greatest justices ever to serve on the Court. The sixteenth person to serve as chief justice of the United States, he sat on the Court for thirty-three years.

  Each of the nine justices hires law clerks, typically four per year. The clerks spend almost every waking moment with their justices, helping them read the briefs, study the case law, prepare for oral argument, and draft their opinions. For a young lawyer, there is no better opportunity to learn and understand the real inner-workings of the Court.

  The Chief hired just three clerks per year rather than four. He had a staggering intellect, with a near-perfect photographic memory. He was deeply conservative, and he had spent decades trying to lead the Court away from the activist path it had set out on in the 60s and 70s.

  Rehnquist became a teacher, a mentor, and a close friend. I was immensely fortunate to work for him. The Supreme Court was a world I hadn’t known before. I didn’t come from a family that had access or influence. There were no lawyers in my family, and nobody had ever gone to an Ivy League school. My dad came as a penniless immigrant from Cuba, and my mom was the first in her Irish-Italian working-class family ever to go to college. When I was in high school, the small business they had started went bankrupt. We lost our home and all our savings, and I took out large student loans and worked two jobs to make it through college and law school.