This essay is part of our collection on the 2016 election. Read related articles here.
Rarely does a newly elected president of the United States have an open seat on the Supreme Court for which to make a nomination. The 2016 presidential election may therefore be the closest that United States voters ever get to directly appointing a justice of the Supreme Court.
President Barack Obama and the Republican-controlled Senate have been locked in a standoff regarding the appointment of a ninth justice of the Supreme Court since the passing of Justice Antonin Scalia in February of this year. Republican Senators pledge to continue engaging in principled, deliberate inaction on President Obama’s nomination of Judge Merrick Garland to replace Justice Scalia. These elected officials have been clear that their intent is to allow the people to speak through the ballot box so that the next president has the opportunity to fill the ninth seat on the Court.
This particular nomination will be especially momentous, because the ninth justice is likely to control the future ideological direction of the Supreme Court. This new justice may very well launch the Court on a new, consistently progressive trajectory. Conversely, he or she will have the opportunity instead to preserve and build on the conservative jurisprudential legacy of Justice Scalia, which is rooted in the practice of originalism and judicial restraint.
At the time of Justice Scalia’s passing, the Supreme Court was composed of four justices typically applying a conservative judicial philosophy that was reflected in their opinions and votes (Justice Scalia, Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito), four justices consistently applying an activist judicial philosophy and regularly voting as a progressive bloc (Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan), and one “swing” justice with a highly issue-specific approach and voting record (Justice Anthony Kennedy). The result was what could be described as a “moderate” Court in the aggregate, from which a five-justice working majority of the four conservative justices and one “swing” justice recurrently voted to protect essential liberty interests involving, for instance, religious freedom and the sanctity of life.
Indeed, ever since the appointment of Justice Ginsburg prior to the Court’s 1993-1994 term, that same paradigm—in which five-justice majorities of various justices generally considered to be either conservative or “swing” justices who voted together in certain cases in favor of religious freedom, the sanctity of life, and related liberty interests were opposed by steadfast four-justice minorities of various justices who consistently voted together in a progressive pack—had persisted throughout the replacement of multiple justices. Justice Scalia was one of the most staunchly conservative justices during that entire period, due to his commitment to strictly construing the original meaning of the Constitution.
Justice Scalia’s passing now leaves the Court with a membership of eight justices, composed of three conservative justices, four progressive justices, and one “swing” justice. Accordingly, the appointment of the ninth justice stands to be the most consequential appointment in more than a generation. The ninth justice has the potential to extend the effectively “moderate” nature of the Court overall by preserving the Court’s ability to form five-justice majorities that vote in a conservative fashion on at least some key issues. But this new justice could also radically shift the Court in the direction of leftist activism by creating a solid five-justice coterie of progressive members.
The Supreme Court’s Legislative Encroachment
Why should citizens care who gets appointed to the Supreme Court? The answer is that the social, familial, and community values of American culture now routinely find themselves being litigated at the Supreme Court. The Court has increasingly vested itself with the authority to effectuate sweeping cultural change on the say-so of five unelected lawyers who happen to serve as justices. It frequently legislates from the bench. These tendencies are particularly evident in the realms of marriage, the sanctity of life, and religious liberty.
The Framers of the Constitution never intended that the Supreme Court would wield this type of breathtaking power. The Supreme Court was not supposed to legislate, execute laws, or create social policy—it was supposed to “have neither FORCE nor WILL, but merely judgment.” Supreme Court justices are mere mortals, like the rest of the citizenry. They are not inherently more virtuous or less fallible than anybody else. And yet, they have commandeered American culture, arrogating to themselves the ability to make policy choices of profound social importance for all Americans.
Because of the radical politicization of—and habit of policymaking by—the Supreme Court, the ninth justice will be in a position to determine countless rulings that will deeply affect the everyday lives of Americans. The repercussions will not be merely academic. They will be profoundly social and cultural as well.
What’s at Stake in the Filling of Scalia’s Seat?
In the abstract, it may be difficult for individual citizens to identify precisely how their families, communities, social groups, and individual liberties will be affected by a transformation of the ideological character of the Supreme Court. It is therefore important to examine specific Supreme Court decisions and precedents protecting cherished liberties that could be undermined if the Court were to become thoroughly progressive in its approach to the law.
Considering the time period from the appointment of Justice Ginsburg in 1993 to Justice Scalia’s passing during the 2015-2016 Supreme Court term, the Court decided no fewer than thirteen profoundly culture-shaping cases by 5-4 votes in which Justice Scalia voted with the majority. All thirteen of those decisions represent victories for true freedom in some respect under the Constitution and federal law. All are potentially jeopardized by the possibility that a progressive-minded justice may be confirmed to replace Justice Scalia, thereby establishing a new majority of five activist justices that portends the erosion or outright reversal of these liberty-protecting precedents.
One way to grasp the import of these thirteen decisions is to imagine the Supreme Court jurisprudence and American cultural climate that might exist if a justice with the judicial philosophy and record of Justice Ginsburg were to replace Justice Scalia on the Court. Justice Ginsburg dissented in all thirteen of these key decisions. The addition of another justice of Justice Ginsburg’s jurisprudential character could thus conceivably damage or vitiate the holdings and precedents in all of these cases.
Accordingly, it is useful to consider in practical terms the legal and cultural landscape that would effectively exist if these decisions were overturned. The resulting America would be one in which:
(1) Closely-held private corporations would be forced, on pain of massive fines, to provide abortion-inducing drugs and devices in the health insurance plans they offer employees, contrary to the sincerely held religious beliefs of the business owners regarding the sanctity of preborn human life (contra Burwell v. Hobby Lobby Stores, Inc., 2014).
(2) Prayer at public legislative meetings would be heavily regulated in terms of content and speakers, limited to generic and undistinctive invocations or to delivery by members of different faiths according to an unspecified quota system (contra Town of Greece v. Galloway, 2014).
(3) Citizens would be denied the ability to claim tax credits for contributions made to tax-exempt, nonprofit school tuition organizations that provide scholarships to private religious schools (contra Arizona Christian School Tuition Organization v. Winn, 2011).
(4) A cross honoring fallen American soldiers (or any other similar Christian symbol or monument) would be forcibly removed from within the boundaries of federal land based on one person’s objection, even when the monument itself is physically situated on privately-owned land that is within the boundaries of federally-owned public land (contra Salazar v. Buono, 2010).
(5) The Second Amendment would be interpreted as not protecting any individual right to possess and use a firearm for lawful purposes such as self-defense; citizens could be restricted from possessing handguns or using them for self-defense in their own homes or could be forced to keep lawful firearms disassembled or bound by trigger locks that render them ineffective for use in immediate self-defense in the home (contra District of Columbia v. Heller, 2008).
(6) Partial-birth abortion by the “intact dilation and evacuation” method (which involves substantially delivering a fully formed baby before crushing his or her skull in order to terminate his or her life) would be freely practiced without meaningful restriction throughout the United States (contra Gonzales v. Carhart, 2007).
(7) Monuments inscribed with the Ten Commandments would be forcibly removed from public government property based on one person’s objection, even where such a monument has stood unchallenged for decades, is situated among other items honoring non-religious historical or legal ideals and events, and was not erected as a result of any governmental effort substantially to promote religion (contra Van Orden v. Perry, 2005).
(8) The Boy Scouts of America would no longer be permitted to make their own policy decision as to whether to admit gay scoutmasters, and other nonprofit organizations that engage in expressive association would be forced to admit members whose presence significantly burdens the ability of the organizations to advocate their viewpoints (contra Boy Scouts of America v. Dale, 2000).
(9) Congress would be imbued with a general police power under the Commerce Clause to regulate (and create civil remedies pertaining to violations of regulations of) local, intrastate conduct that does not substantially affect interstate commerce (contra United States v. Morrison, 2000).
(10) The federal government could force and conscript state and local government officials to execute and administer federal regulatory programs, such as a federal scheme of gun-control requirements (contra Printz v. United States, 1997).
(11) Disadvantaged children who attend private religious schools would be denied remedial educational services flowing from federal funds, as they would be prevented from even being considered for services on the basis of the same neutral criteria that apply to children who attend public schools (contra Agostini v. Felton, 1997).
(12) Religious speech would be treated unequally and with disapprobation on university campuses; Christian student groups—because of their religious viewpoints—would be denied access to student activity fee funds that are available to non-religious campus groups (contra Rosenberger v. Rector and Visitors of the University of Virginia, 1995).
(13) Congress would be imbued with a general police power under the Commerce Clause to regulate (and establish criminal penalties pertaining to violations of regulations of) local, intrastate conduct (such as mere possession of a firearm) that does not substantially affect interstate commerce (contra United States v. Lopez, 1995).
To zero in on just one of the decisions identified above, Justice Ginsburg declared in her dissent in the Gonzales v. Carhart case (in which the Court upheld the federal ban on partial-birth abortion, based on a respect for the government’s interest in protecting preborn life): “Today’s decision is alarming.” It is ironic and lamentable that Justice Ginsburg found the majority opinion alarming but was apparently not alarmed by the brutal practice of substantially delivering a fully formed, fully alive baby before crushing his or her skull. If Justice Ginsburg had her way, that barbaric procedure would be permitted throughout the United States.
The Gonzales v. Carhart decision is simply one example of why the next Supreme Court appointment will be such a landmark selection. What is truly alarming is the thought of crucial precedents protecting innocent preborn life and safeguarding people who cherish faith and individual liberty being marred by the appointment of a justice whose views on such matters may be foisted on the entire American populace.
The Supreme Court Is a Key Voting Issue in 2016
The upcoming presidential election and resulting Supreme Court nomination may ultimately lead to a reevaluation of the precedents set in the above cases. The effects on future cases dealing with life, religious liberty, and family values will also be profound. Americans who care deeply about these issues have the opportunity to take into account the decisions discussed above—along with the overall judicial philosophies likely to be propagated by a new president’s judicial nominees—in making informed choices about casting their votes for president (and, for that matter, the Senate, which has joint power with the president over judicial appointments).
The realization that Supreme Court appointments have become a central political campaign and voting issue suggests that the time may have arrived to consider amendments to the Constitution that institute fresh checks and balances against an activist Supreme Court.
Regardless, who will serve as justices on the Supreme Court, what the future philosophical and ideological direction of the Court will be, and how to preserve Justice Scalia’s liberty-affirming legacy of judicial originalism are all salient considerations at this decisive juncture. In a presidential election year that is fraught with challenging choices, weighing these Supreme Court-related factors together with all other pertinent information may help Americans thoughtfully develop convictions about how to vote their consciences. Each instance of one person exercising his or her one vote at the ballot box in 2016 is crucial to the ultimate determination of who will eventually be casting one very pivotal vote on the Supreme Court.
Mr. Bruno thanks Nicole Saunders and Dan Wharton for the important research they contributed to this article.