Why the Supreme Court Makeup Matters Beyond Abortion
Written by TM of JC on September 24, 2020
Last week’s death of Ruth Bader Ginsberg represents the third opportunity for President Donald Trump to nominate a Supreme Court justice.
A third of evangelicals by belief cited Supreme Court nominees and abortion stance as reasons for voting for Trump in 2016. Many evangelicals and pro-life Americans have celebrated the possibility that another conservative justice could shift the Court toward overturning Roe v. Wade and reshaping abortion law in the country. Yet the new makeup of the Court will address crucial issues for the church that extend far beyond abortion.
CT asked legal experts how a new Supreme Court appointment replacing Ginsburg stands to affect evangelicals outside of Roe v. Wade. Here are their responses, calling out issues such as religious freedom, racial equality, child protection, and free speech.
Barry P. McDonald, law professor at Pepperdine University:
As it stands, the Supreme Court is controlled by a majority of five solid conservative justices who either have a strong record of supporting religious freedom rights or give every indication that they will develop such a record. If President Trump succeeds in appointing Justice Ginsburg’s successor, that will likely add one more justice to this coalition. While an additional vote is not necessary to maintain this trend, it could prove important to religious freedom proponents in cases where Chief Justice John Roberts might moderate his vote in an attempt to shield the Court as an institution from charges that it has become too political and divisive (or where any conservative justice moderates his or her vote for whatever reason). This is most likely to occur in cases where religious beliefs might conflict with laws prohibiting discrimination on the basis of sexual and gender orientation. Indeed, both Roberts and Justice Neil Gorsuch recently alluded to such future contests in voting to interpret federal workplace laws as barring such discrimination.
Kim Colby, director of the christian Legal Society’s Center of Law and Religious Freedom:
Justice Ginsburg’s replacement potentially could provide a more secure footing for our basic human right of religious freedom. In 27 years on the Supreme Court, Justice Ginsburg heard over 30 religious freedom cases. Unfortunately, her support for religious freedom was lackluster.
Justice Ginsburg previously voted in favor of religious schools’ freedom to choose their teachers but then voted against that right in a recent case. She voted once for—and three times against—robust application of the Religious Freedom Restoration Act. Her two votes in favor of prisoners’ religious freedom, as well as a Muslim employee’s right to wear a hijab, were commendable. But four times, she voted to uphold the government’s exclusion of religious speech from the public square.
Justice Ginsburg advanced a theory of the Establishment Clause that excluded religious students from government programs funding education. Several times she voted to remove religious symbols from public property. When comparing her votes in recent cases to votes by Justice Neil Gorsuch and Justice Brett Kavanaugh, the comparison suggests that someone nominated by President Trump likely will be a good steward of religious freedom.
Lynne Marie Kohm, law professor at Regent University:
Justice Ruth Bader Ginsburg’s replacement can make a dynamic difference for America’s children in three key cases—one past, one present, and one (hopefully) future.
Past: Transgender rights—Bostock v. Clayton County, Georgia. The Court held that firing an individual for being transgender violates Title VII. Ginsburg’s replacement could alter future transgender rulings, particularly as biological female athletes seek to protect their rights in girls’ sports.
Present: Foster care—Fulton v. Philadelphia. First Amendment rights of Christians who provide foster care are at stake as the Court soon determines whether the government can condition a religious agency’s ability to participate in the foster care system on practices that contradict its religious beliefs.
Future (hopefully): Child pornography. In 2002, Ashcroft v. Free Speech Coalition struck down two provisions of the Child Pornography Prevention Act of 1996 as overbroad, giving a tremendous win to the adult-entertainment industry. Child pornography has since proliferated. Children need protections that a Ginsburg replacement could help deliver.
Beyond Roe, American evangelicals want to see all children protected, born and unborn.
Thomas Berg, law professor at the University of St. Thomas:
One obvious evangelical priority for the Court’s new justice (beyond abortion) is religious freedom, which the Court already strongly supports. Majorities of 5–7 justices have protected religious schools’ right to hire the religion teachers they choose, employers’ right to object to covering employees’ contraception, and families’ right to choose religious schools for their children and still receive government educational assistance. Justice Ginsburg dissented from all those rights; the new nominee will strengthen them.
But the nominee should also be questioned about another priority: racial equality. Christians must care about this because racism denies that some fellow humans have their full God-given dignity. And justices should care because the Constitution’s Fourteenth Amendment was meant to eliminate practices that had kept black people constricted even after their formal enslavement ended. Republican appointees typically commit to enforcing a provision’s “original meaning.” The next justice should apply the amendment vigorously to racially unjust practices of our day.
Carl H. Esbeck, law professor emeritus at the University of Missouri:
Justice Ruth Bader Ginsburg was an effective legal activist, first for the ACLU and later as a high court justice. To admire her work depends on whether one believes the role of a judge is to align the law with one’s sense of justice or is it to subordinate the self to the nation’s organic documents and the rule of law. Unlike Justice Ginsburg, we can aspire to a successor who will interpret the US. Constitution in accord with the original meaning of the adopted text. I also hope for reconsideration of the free speech case of Hastings Chapter of the christian Legal Society v. Martinez. Authored by Justice Ginsburg, this was a 5-4 decision denying student religious organizations access to meeting space at a state university campus without first agreeing that there be no qualification that the organization’s student officers and members conform to a statement of faith.
Rena M. Lindevaldsen, law professor at Liberty University:
Conservative justices view the Constitution as a source of, and limit on, their power, recognizing that the separation of powers best protects our God-given liberties and that the Constitution contains an amendment provision to make changes when necessary. Liberal justices circumvent that amendment provision and simply change or create law to suit what they believe the culture desires. But when those justices promote the “right” of people to do whatever pleases them amidst a culture that promotes “godlessness and wickedness” (Rom. 1:18), government punishes those who proclaim the unchanging truth of Scripture. That punishment takes many forms, including firing employees who will not promote a particular agenda, arresting sidewalk counselors, singling out churches for censorship, labeling the truth of S