Just how important are presidential Supreme Court picks?
By Matt Hadro
Washington D.C., Oct 27, 2016 / 06:18 am (CNA/EWTN News) - Both major presidential candidates say that the future of the Supreme Court depends on this election – but how important is the Court to Catholics, and will the next president really shape it?
“It is certainly one of the most important things that a president does,” said Professor Michael McConnell, a law professor at Stanford University and director of the school’s Constitutional Law Center. “And because the Supreme Court has been so closely divided with so many 5-4 decisions, even one justice can make a very big difference.”
After the death of Supreme Court Justice Antonin Scalia in February, President Barack Obama nominated Merrick Garland, chief judge of the D.C. Circuit Court of Appeals, to take his place. However, Senate Majority Leader Mitch McConnell refused to confirm the nominee, saying the Senate would wait until next year to consider confirming nominees.
Thus, the Supreme Court – normally composed of nine justices – is operating with an empty seat, leading to outcomes like a 4-4 split in United States v. Texas, the case involving President Obama’s executive action on immigration. The even split allowed the lower court’s decision to stand.
Advocates of both major presidential candidates say the next president’s nomination of a justice will be one of the most important reasons to vote in the coming presidential election. And, given the age of some of the justices on the bench, several more could retire in the next few years, giving the next president the opportunity to nominate several of their hand-picked justices to the Court.
Has a president been able to shape the Court in the past? Yes, McConnell said, there are historical examples of this.
Franklin Delano Roosevelt at first saw his “New Deal” policies declared unconstitutional by an unfriendly Court; however, “by the end [of his presidency] he had named all nine” justices and “the Court was completely in congenial hands,” McConnell told CNA.
“President Nixon had the opportunity to name four justices, which marked the end of the liberal activist Warren court and ushered in an entirely new jurisprudence,” he added.
The next justice could very well determine future jurisprudence on the constitutionality of state abortion bans, abortion regulations, and religious freedom cases where, for example, businesses are sued for conscientiously declining to serve a same-sex wedding or conscientiously declining to have birth control covered in employee health plans.
Pro-life and pro-choice advocates have both touted the importance of the Court in this election.
For instance, after the Supreme Court struck down Texas’ regulations of abortions clinics in a 5-3 decision in Whole Woman’s Health v. Hellerstedt, the president of the pro-life group Susan B. Anthony List Marjorie Dannenfelser said “the stakes for the 2016 election could not be higher.”
“The next president will be tasked with selecting Justice Antonin Scalia’s replacement and up to three others,” Dannenfelser said. “We must elect a pro-life president and safeguard today’s pro-life majorities in the House and Senate.”
Meanwhile, the political arm of Planned Parenthood praised the Court’s decision. “Our next president – and the new Supreme Court justices they’ll appoint – will determine whether women continue to have a constitutional right to safe and legal abortion,” Planned Parenthood Action stated.
At the final presidential debate, when asked what kind of Supreme Court justices they would appoint, Democratic presidential nominee Hillary Clinton and Republican nominee Donald Trump gave different answers.
Clinton insisted that “we need a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community,” adding that “it is important that we not reverse marriage equality, that we not reverse Roe v. Wade.”
Trump, meanwhile answered that “I am pro-life and I will be appointing pro-life justices,” along with justices that “will be protecting the Second Amendment.” He stopped short of saying that he wanted Roe v. Wade overturned.
With the Court closely divided on important cases, the impact of even one Supreme Court justice cannot be overlooked, McConnell emphasized.
For instance, in a 2014 decision, the Supreme Court ruled that the craft chain Hobby Lobby and other “closely-held for-profit” businesses were protected from the federal government’s birth control mandate by a religious freedom law, the Religious Freedom Restoration Act.
That was a 5-4 decision with Justice Scalia in the majority, which meant that if just one justice in his place ruled differently, the Green family who owns Hobby Lobby – and other business owners claiming to run their business based on their religious beliefs – would have lost a key religious freedom case.
“The Court is very divided on questions of vital importance to believing and practicing Catholics,” said Professor David Upham, attorney-at-law and professor of politics at the University of Dallas.
On one side, four justices have been appointed by Democratic presidents and have ruled consistently together. “They vote in virtual lockstep over 90 percent of the time” and “very rarely file separate opinions,” McConnell noted.
They have voted to uphold legal abortion and same-sex marriage and have opposed the religious freedom of Catholics who don’t want to cooperate with “the evils of the sexual revolution” like “contraception, abortifacients, and the public celebration of homosexuality,” Upham told CNA.
On the other hand, three justices have voted the opposite way on these issues.
They “have repeatedly voted to affirm, and not invalidate state and federal laws designed to secure the right of the child to his life and his parents,” Upham said, and “they have voted consistently to affirm and preserve the immunity of Catholics and others against compulsory participation in the practices and celebrations of the sexual revolution.”
And the remaining justice – Justice Anthony Kennedy – “has been less than consistent on these questions,” Upham added.
And how closely do the justices on the bench resemble the politics of the president who nominated them to the Court?
Historically, the justices are pretty consistent with the party politics of the president who appointed them, McConnell said. “Presidents don’t make mistakes all that often.”
“It’s certainly true that justices sometimes vote contrary to what you might think are the political leanings of the party who appointed him or her, and that’s a good thing,” he explained, but added that “it doesn’t happen very often.”
One example he gave of a justice defying the trend was Justice David Souter – nominated by Republican President George H. W. Bush – who “turned out to be a fairly reliable member of the liberal wing of the court. It’s unlikely that that’s what President Bush was looking for.”
Justices are nominated by the President and confirmed by the Senate. Upham agreed that justices nominated and confirmed by a president and senators all of the same party are more consistent with a President’s views.
“In the past 30 years, every justice nominated by a Democratic President and confirmed primarily by Democratic Senators has been hostile to the rights of life, marriage, and religious freedom affirmed by the Church,” Upham said.
“In that same time, every justice nominated by a Republican President and confirmed primarily by Republican Senators has been friendly – or at least not hostile – to those same principles,” he added. “The only exceptions – Justices Souter and Kennedy – were appointed by a Republican President but confirmed primarily by Democratic Senators.”