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What’s at Stake for the Courts

By Kelly Shackelford, President, CEO and Chief Counsel

Thanks in part to the COVID-19 pandemic, the 2020 presidential election will be one unlike any other. However, one issue that proved to be a deciding factor for many voters in 2016 will remain as important, if not more, during this cycle: judicial appointments.

Prior to the 2016 presidential election, Justice Antonin Scalia’s death turned the nation’s attention to who the next president would nominate to fill the vacancy on the U.S. Supreme Court. Then-candidate Donald Trump made the bold move of going beyond the usual platitudes about the judicial philosophy to which his nominee(s) would adhere and instead published a list of names of potential nominees for the American people to see for themselves. Like much of Trump’s campaign, it was unconventional, and it worked.

For I the Lord love justice.
—Isaiah 61:8, ESV

This year, with rumors of potential retirements and Justice Ruth Bader Ginsburg’s continued health issues, the Supreme Court is back at the center of the political stage. Like any candidate running for reelection, President Trump now has a record on this issue that voters can consider. As vice president, Joe Biden praised President Obama’s appointments to the Supreme Court—Justices Elena Kagan and Sonia Sotomayor—two of the high court’s liberal justices. The progressive left expects more of the same from a possible President Biden.

For Biden and the left, the judicial branch is viewed as a super-legislature—another avenue to accomplish their policy goals if the democratic process “fails.” President Trump and conservatives have traditionally viewed the judicial branch as one that should not be influenced by political considerations but act as a neutral guardian of constitutional principles and arbiter of disputes between legislative and executive branches.

The Founding Fathers of our nation explained the purpose of dividing power among three separate and coequal branches of government. With each branch zealously guarding its own influence, an overreach by one would be met by resistance from the other two, thus preventing any part of the government from accumulating too much power. Over time, however, the legislative and executive branches have ceded much power to the judicial—and the judiciary has taken full advantage.

Federal judges are appointed for life, theoretically to shield them from the political process so they can resist arbitrary rulings influenced by the fleeting political whims of the electorate. Their role is to declare what the law is, not what they think it should be. Likewise, when assessing the constitutionality of a law or executive action, judges are expected to let the Constitution guide them. Their proper role is to evaluate in light of what the Constitution says, not the desired policy outcome or the political popularity of the matter in question.

But when the judiciary wanders into the realm of policymaking—as it has for the past several decades by judges who believe the Constitution is a “living document”—the politics of judicial nominations become more significant and rancorous.

“I’m going to make sure that we start by reversing the damage Donald Trump has done to the federal bench. … We have to win back the Senate, the single most consequential thing we can do beyond getting Donal Trump out of offie, and we can do it with your help.”

“From the Beginning of my campaign, I promised to appoint judges who will adhere to the true and original meaning of our our Constitution.”

“While I’m your president, we will continue to nominate highly qualified judges who truly love our Constitution.”

Beginning with the nomination and eventual rejection of Robert Bork in 1987, Supreme Court nominees whom the left see as threatening to their political goals have seen their careers and good names attacked personally and viciously to beat them into defeat. Bork’s defeat broke new and dangerous ground—so much so that his name is now used as a verb in political circles to describe using one’s personal beliefs as a proxy for opposition.

If the courts weren’t making the policy decisions on some of the most controversial issues of the day, would any of these inquisition-style hearings be happening?

Regardless, the politics of judicial appointments has become one of the most important issues of elections because the decisions of the courts reverberate through culture. For conservative voters, the Supreme Court’s record in recent years is mixed. On the positive side, in just the past two terms, the court in several decisions has protected religious liberty. Last year, it upheld the constitutionality of religious symbols in the public square in its landmark The American Legion v. American Humanist Association opinion, protecting the Bladensburg Peace Cross.

This term, it protected religious schools in their freedom to make employment decisions without government interference and ruled against government discrimination of faith-based schools and organizations. In its next term, the Supreme Court will again make crucial decisions, including a case that could decide the future of faith-based child placement and adoption organizations.

At the same time, the conservative voters are very upset about recent judicial decisions that struck down pro-life laws and redefined the term sex in the Civil Rights Act of 1964 to include terms like sexual orientation and transgender.

As a result, conservative voters insist that future Supreme Court nominees be unquestionably solid in their commitment to the Constitution, instead of their own predilections. There are a large number of lower court judges, many nominated by President Trump, who have solid, public records on religious liberty, judicial philosophy and the Constitution. Now, any judge who is nominated to the Supreme Court, or any federal court for that matter, must have an unambiguous record in their legal opinions and other writings of actually believing and defending constitutional principles, or they simply won’t get support from conservatives.

Over the next four years, there will be many more vacancies to be filled on the U.S. District Courts, the Courts of Appeals and, potentially, the Supreme Court. Few can argue against the notion that we need men and women in the judiciary with the humility to refrain from making policy and the integrity to uphold the Constitution as written, regardless of the direction the cultural winds may be blowing. Although we don’t get to vote on the judges, we do get to decide who appoints them. It is an awesome responsibility and one that may well determine what kind of country we leave to our children and grandchildren.

The Supreme Court, with a very slight 5-4 conservative makeup, is currently on the precipice and could go either way, depending on the next president. For liberal voters, another justice or two will allow them to reach the political goals they could not accomplish through the normal democratic process. For conservative voters in 2020, it is a chance to solidify the high court for decades to come in protecting founding freedoms, like life and religious freedom, and a judiciary returning to the original language of the Constitution. The future of America and the courts will be significantly determined by the election that is only weeks away.

Note: This article was first published on September 21, 2020 and is re-published here with permission. The article presents the main points of an article published in Decision Magazine. This work was authored Kelly Shackelford. The full article can be found on the Decision Magazine website, here.