President Trump is expected to announce his nominee Monday to fill the vacancy on the Supreme Court created by the retirement of Justice Anthony Kennedy. This nomination will be among the most significant actions of the Trump presidency and is generating an enormous amount of discussion and debate.
On the left, the rhetoric is heated and mostly centers on whether the nominee would try to overturn the Supreme Court’s 1973 Roe v. Wade decision that legalized abortion nationwide.
Federal appeals court Judge Amy Coney Barrett – who the media report is a finalist in contention for the Supreme Court nomination – has been attacked on the abortion issue. The mainstream media have made sexist comments about her. The NAACP Legal Defense Fund accused her of racial prejudice.
Democratic congressional leaders – together with Planned Parenthood, NARAL Pro-Choice America and other left-leaning organizations – have launched a scorched-earth campaign against Coney Barrett in light of their perception that she will overturn Roe v. Wade if she becomes a Supreme Court justice.
On the right, the debate centers on which of President Trump’s highly qualified potential nominees will be chosen, and who would make the best justice.
Both sides agree that the confirmation of Kennedy’s successor is a major event that could have profound implications for our nation over the next several decades.
And, as I argue in “Letters to an American Christian,” there are three things American citizens – especially evangelical conservatives – should hope for in a Supreme Court nominee.
First, we want a nominee who will defend religious liberty.
The First Amendment to the U.S. Constitution declares: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This amendment is deeply significant because it declares that every citizen is free to hold his or her own convictions about ultimate reality, align his or her life with those convictions, and do so openly and without fear.
Why are we so concerned about religious liberty? Because certain elite power brokers on the left want to take it away from us.
The chairman of the U.S. Civil Rights Commission, Martin R. Castro, illustrated this negative prejudice when he wrote in 2016: “The phrases ‘religious liberty’ and ‘religious freedom’ will stand for nothing except hypocrisy so long as they remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.”
But Castro is wrong. The desire for religious liberty is not a smokescreen for hypocrisy and bigotry. It is a sincerely held desire that American citizens be able to live according to their beliefs. And it is the first and most important freedom of any law-governed democratic republic. When religious exercise is threatened, every other freedom is endangered as well.
Second, we want a nominee who will act as a Supreme Court justice instead of a social engineer or moral philosopher.
In a 2009 speech titled “Mullahs of the West: Judges as Moral Arbiters,” the late Justice Antonin Scalia lamented that many Americans have unfortunately placed their faith in Supreme Court justices to give our nation moral guidance.
Yet, our Constitution does not allow for justices to act like Muslim mullahs. Instead of allowing the justices and others in the judicial system to make decisions of moral import, the Constitution gives that right to “We the People.”
Justice Scalia was telling us to reject the left’s view that the Constitution is a “living document” that judges have the right to reinterpret in light of “the times.” In effect, this view allows judges to remove things from the Constitution they don’t like – and insert things they do. It made possible the Roe v. Wade decision, among others.
Scalia was not saying that the Constitution might never need to be revised or updated again in light of “the times.” What he was saying is that our Founding Fathers made clear that an amendment to the Constitution must reflect the will of the people. That’s why an amendment requires an overwhelming congressional majority and ratification by three-fourths of the state legislatures.
Third, we want a nominee who will be willing to reject unconstitutional precedents.
One of the most contentious debates about President Trump’s potential nominees concerns the legal concept of stare decisis. A Latin phrase, stare decisis means that judges should respect legal precedents by letting them stand instead of overturning them.
It is important to note, however, that stare decisis is not found in the Constitution or the Bill or Rights; it is not the law of the land, but a “rule of thumb.”
A number of Democratic politicians have taken a sudden interest in this rule of thumb, wishing to make it into the law of the land. And for what reason? Because they are afraid Roe v. Wade might be overturned.
But don’t be fooled. These Democrats aren’t interested in respecting legal precedents. They’re interested in protecting the left’s darling accomplishment – Roe v. Wade. They wouldn’t want to let the Supreme Court’s 1896 Plessy v. Ferguson decision – which upheld the constitutionally of racial segregation laws – stand as a precedent, would they?
Of course not.
Were the Democrats concerned about legal precedent when the Supreme Court issued its Obergefell v. Hodges decision in 2015, saying that same-sex couples have a constitutional right to marry?
Of course not.
Yet suddenly, Democrats and other supporters of abortion are interested in upholding legal precedents because a strict adherence to stare decisis can be used to safeguard Roe v. Wade, even though many on the right believe that decision was unconstitutional and poorly reasoned.
What evangelicals want is what all American citizens should want – a Supreme Court justice who will protect our constitutional freedoms, act as a legal interpreter instead of a moral philosopher, and be willing to overturn unconstitutional legal precedents.
In confirming this type of justice, Congress will send a message to the political community about what we need on the Supreme Court.