should you fear a clinton presidency because of the supreme court?

should you fear a clinton presidency because of the supreme court? October 20, 2016

by guest writer H. Lillian Vogl

What About the Supreme Court?

I am hearing this question a lot these days. The next President will appoint at least one Justice to the Supreme Court, and possibly as many as three or four. If that next President is Hillary Clinton, will that cause a serious setback to conservative priorities, especially the pro-life movement? Will that result in Christian persecution that will make it difficult for us to have political influence going forward? Will it doom the nation to irrevocable decline?

Well, I think I am actually a good person to answer that question. I’m an honors graduate of a “top 10” law school and a member of the Federalist Society for the past 15 years. I have close friends who have been and are Supreme Court clerks, and others who have been Senate staffers vetting Supreme Court nominees. All on the conservative side of the legal balance. These friends have been rather quiet this election season. I hear alarm bells being rung mostly by people who have no close experience with the federal judiciary, and let me explain why.

U.S. Government 101: How Are Supreme Court Justices Appointed?

I’m sure you learned this in school at some point, but just in case anyone forgot: the President does not appoint Supreme Court Justices (or judges to lower federal courts) by himself or herself. “Advice and consent” of the Senate is required. While technically only 51 votes are required to “consent,” the filibuster rules of the Senate mean that 41 Senators in opposition can block any Presidential appointment.

If you really care about the Supreme Court, focus your attention on the Senate races. Polls show the Republicans and Democrats neck in neck for controlling the Senate. At the end of the day, the Republicans will probably hold 48-52 seats—more than enough to filibuster any hard-left nominees that might be put up. A majority is preferable, of course. So if you want the Supreme Court to protect conservatives and you live in Indiana, Pennsylvania, Nevada, North Carolina, New Hampshire, Missouri, Florida, or Wisconsin, make sure you get out and vote for the Republican Senate candidate in your state. If you don’t live in one of those states and really want to help, go volunteer for a few days or send money to one of these races.

Whether there are 52 or 48 Republicans or anything in between, the threat of a filibuster is always going to hang over the head of Hillary, moderating her picks. No President has nominated anyone considered to be extreme left or extreme right since Robert Bork’s name became an epithet in 1987. This is even true of President Obama’s two appointments to the Supreme Court, who were confirmed in 2009-2010 when there were 60 Senate Democrats and the Republicans had NO ability to filibuster a nomination on a party-line vote.

Now Barack Obama had a reputation when he taught law classes of espousing Critical Legal Theory, which combines a sympathy for Marxism with a deep skepticism that the law is knowable and belief that legal decisions are really just about what a judge thinks is “fair” or who holds power. And yet Obama did not appoint Justices embracing this philosophy. Elena Kagan and Sonia Sotomayor have often joined in unanimous decisions limiting government overreach of power, even when the government’s purpose was sympathetic and meant to help “the little guy.”  In other words, they have not been disastrous Justices. Hillary Clinton’s track record in politics is one of center-left pragmatism. It is hard for anyone familiar with the workings of Supreme Court nominations to imagine her appointing anyone more liberal than Obama’s picks and trying to push them through the Senate gamut.

The Supreme Court Probably Isn’t Going to Overturn Anything Decided In the Past 50 Years

You think a few Supreme Court appointments will result in overturning Roe v. Wade, or Citizens United (free political speech for incorporated groups), or Obergefell v. Hodges (right to same-sex marriage), or Heller v. District of Columbia (individual right to own guns)?  That’s not how it works. That’s not how any of this works.

The Supreme Court does not just take up issues because they want to decide them or reevaluate them. They decide nothing until there is a “case in controversy” that has wound its way through the federal court system and four Justices decide it’s worth taking the case.

But let’s back up. First a state or federal legislature has to pass a law that is constitutionally suspect, or that could be applied in constitutionally suspect ways. Then the government has to actually enforce (or not enforce) the law in a way that causes harm to a particular person, such that they have a credible claim their constitutional rights have been denied. Then such a person has to decide to file a lawsuit and obtain high-priced lawyers to do so. Then the case is argued in a federal district court, and decided by federal district judges who are usually fastidious about following the precedent of higher federal courts. There has to be enough gray area about applying that precedent to get a federal appeals court to reconsider the district court decision. After the appeals court makes a decision, either party can ask the Supreme Court to review, called a writ of certiorari. Most of the time the Supreme Court says no. Usually they only say yes if different appeals courts have come to contradictory conclusions on similar issues, or if there is significant gray area in the law that could use clarifying. This process takes a few years, at minimum.

And even when a case makes it to the Supreme Court, one of their core principles in deciding cases is called “stare decisis.” As the Cornell University Law School legal dictionary explains:

Stare decisis is Latin for “to stand by things decided.” … According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt.

Any law student can name for you the mere handful of times in the Supreme Court’s history that it has outright reversed previous decisions. Brown v. Board of Education reversing Plessy v. Ferguson on the issue of “separate but equal.” West Coast Hotel reversing Lochner on whether the government can restrain freedom of contract by regulation. Lawrence v. Texas overturning Bowers v. Hardwick on whether the right of sexual privacy is only for heterosexual couples. There isn’t much else. The Supreme Court has even declined to reverse something as wrong and frivolous as the decision in 1922 that Major League Baseball wasn’t “engaged in interstate commerce” and therefore not subject to antitrust laws.

Historically, We’ve Had Much Worse Supreme Courts and the Republic Lived to Tell

Speaking of really wrong Supreme Court decisions that have never been officially overturned, have you heard of the case of Buck v. Bell? It’s an infamous one from 1927 in which the Supreme Court approved of a state law forcing mandatory sterilization on women who were declared to be “feeble-minded” by the state. “Three generations of imbeciles is enough,” Justice Oliver Wendell Holmes Jr. (in)famously opined. If you think the HHS mandate that would force the Little Sisters of the Poor to include contraceptive coverage in their health insurance plans is bad, take a gander at the forced sterilization and other eugenic programs and attempts to ban private (especially Catholic) education in the first 3 decades of the 20th century.

Fortunately, the Supreme Court struck down the latter in Pierce v. Society of Sisters (1925), but it is incredible today that the right to choose a private school for one’s own child would even be called into question. Ironically, the right articulated in Pierce later was used to justify Roe v. Wade (among other things), but no state today would try to take away the right to send children to private schools. The Hobby Lobby decision finding that even private for-profit companies enjoy religious conscience protections has the benefit of stare decisis. So do Citizens United and Heller.

A key point to understand is how legal academia has greatly shifted over the past 3 decades. From the 1920s through the 1970s legal academia scoffed at the notion of originalist or literal interpretations of the law. Since the Federalist Society emerged in the early 1980s and the late Justice Scalia started writing his famous originalist opinions in the late 80s, the originalist/textualist perspective has had outsized influence in the judiciary and legal academia, so virtually all judges today will at least engage in textual analysis. There have been a lot of unanimous Supreme Court decisions striking down Executive overreach of the Obama Administration. We’re a long way from the Supreme Court of the 1960s and 70s when the Justices watched putative porn films to decide whether they were obscene based on the “I know it when I see it” standard.

Bottom Line

Yes, it is a shame that Justice Scalia died when he did, but he leaves an enduring legacy on the American Judiciary. Yes, Hillary Clinton will not be inclined to appoint Justices who would try to overturn Roe v. Wade. But as someone once famously said, “what difference does it make?” The truth is, not much. We won’t be taking the first step into a thousand years of darkness. Political and Christian conservatives are not going to be persecuted and repressed (unless you really think being enjoined to bake a cake for someone whose lifestyle you don’t approve of constitutes persecution and repression). Just chill out about the Supreme Court, focus on what you can do locally and personally to change the culture (the Supremes will eventually follow), and be grateful that Justice Holmes isn’t around anymore to find you “feeble minded.”

P.S. Many of the most prominent and respected “originalists” in legal academia (i.e. Scalia acolytes) now are publicly repudiating the Supreme Court argument for voting for Trump.

H. Lillian Vogl is a radically Catholic social media crusader, mother of two loving free spirits, reformed from being Reformed, recovering lawyer and lobbyist, and professional expert in death and taxes.

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