The United States is currently 28 days from electing its next President, and while that fact alone might inspire both anxiety and excitement for individuals both in and out of the US, this recent election seems to be doing both in greater detail. Perhaps it has something to do with the candidates that we, as a nation, have elected to represent our two political viewpoints. Or, perhaps it’s something else.
A few days ago these two candidates met on stage at the second Presidential debate, where they discussed, amongst other things, campaign finance reform, combating ISIS, racial violence, Iran, Russia, tweeting as a modern form of communication, and whether or not assaulting women by “grabbing them by the pussy” is permissible due to one’s celebrity status. All important topics in a Presidential debate, and perhaps that ‘something else’ I just mentioned.
In addition to these, one of the audience members, Beth Miller, asked the poignant question: “What would you prioritize as the most important aspect of selecting a Supreme Court justice?”
I refer to this as poignant because, since the death of Justice Antonin Scalia, the Supreme Court of the United States has been limited to eight members. This is problematic for two reasons:
- The Supreme Court (the ‘Judicial Branch’ of the United States) shapes American law via decisions about how American law is interpreted.
- When the justices of the Supreme Court disagree, having an odd number of justices shifts that disagreement toward a majority decision.
As it is right now, the second reason is limiting the first. That is, because the Court is limited to eight members, when it comes to a ‘tie,’ a swing opinion is not there to grant a proper decision.
Here’s an example. Let’s say the Court chooses to decide on the legality of a prayer given at the beginning of a town board meeting (which, on the surface, looks unconstitutional when we consider the disestablishment of religion granted by the First Amendment of the US Constitution).
Many issues are present here.
- Does having a prayer at a town board meeting represent a governmental establishment of religion when the prayer invokes a specific religious belief, or any in general?
- Does this represent an historical precedence, and thus an action of tradition?
- If it is tradition, is it secular or benign?
- What about the language used by the man or woman providing the prayer? Is it specific? Or general?
- What is the majority religious affiliation of the members of the board, or even the city, in which the board meets? Does this matter under the Constitution’s strict separation of Church and State?
- What about past precedence in similar cases where the Supreme, District, or Circuit Courts have had to make similar decisions?
So the Court meets and hears testimony and debates and discusses these issues and then the individual Justices come to their individual conclusions. Which also means that they confer and either agree or disagree with each other on the central question pertaining to this particular case: does the action of having a clergy member give a prayer at a town board meeting indeed represent an unconstitutional act.
Now, in this hypothetical example, let’s imagine there exists a tie, four against four. We would need a tie breaker, a Justice who sides with one or the other, and thus provides us, the American people, with a decision. In this case, the decision would be represented by a 5-4 majority.
This scenario actually happened recently, in the case of Town of Greece v. Galloway (2014). In this instance the Court ‘split,’ with the final opinion being drafted by Justice Anthony Kennedy.
What’s also interesting here, and which leads me to the point of this post, is that the ‘split’ that occurred here took place along a ‘right/left’ line. That is, the decision to legally declare that sectarian (the majority of which was Christian) prayer is is entirely constitutional because it represents an historical understanding that America has a long tradition of being ‘Christian,’ resulted from the combined decisions of five Catholic Justices, appointed by conservative Presidents. Not surprisingly, the dissenting opinions came from Justices appointed by Liberal Presidents, three of which are Jewish.
In other words, thanks to the Court’s decision in Town of Greece v. Galloway, non-Christian individuals, who either identify with a different religious organization, are Atheists, or do not identify religiously at all, must participate in the opening prayer, because board meetings in the past got away with it. Likewise, this also opens (and did open) the opportunity for any religious organization to offer an opening prayer.
Thus, the Court essentially ensured that at any meeting there might be someone who feels oppressed, awkward, or marginalized.
So, Beth Miller’s question to the two candidates on Sunday night is all that more poignant because the person who is elected President will be appointing a Justice to fill Scalia’s absence. The assumption with this, of course, is that this person will appoint a Justice that might ‘shift the balance’ of the Court from a conservative majority to a liberal one, or keep it as it currently is. This would in turn either maintain decisions like Town of Greece v. Galloway, or shape them differently.
For those curious, here’s how the candidates responded:
While both responses are guilty of tangential wandering, particularly toward each individual’s political ideologies (duh), Mr. Trump’s is quite worrying, particularly because it demonstrates his utter lack of understanding about how the Court works, as well as his inability to hold one single thought longer than thirty seconds or so.
Here’s his response, taken from this transcript:
Justice Scalia, great judge, died recently. And we have a vacancy. I am looking to appoint judges very much in the mold of Justice Scalia. I’m looking for judges — and I’ve actually picked 20 of them so that people would see, highly respected, highly thought of, and actually very beautifully reviewed by just about everybody.
But people that will respect the Constitution of the United States. And I think that this is so important. Also, the Second Amendment, which is totally under siege by people like Hillary Clinton. They’ll respect the Second Amendment and what it stands for, what it represents. So important to me.
Now, Hillary mentioned something about contributions just so you understand. So I will have in my race more than $100 million put in — of my money, meaning I’m not taking all of this big money from all of these different corporations like she’s doing. What I ask is this.
So I’m putting in more than — by the time it’s finished, I’ll have more than $100 million invested. Pretty much self-funding money. We’re raising money for the Republican Party, and we’re doing tremendously on the small donations, $61 average or so.
I ask Hillary, why doesn’t — she made $250 million by being in office. She used the power of her office to make a lot of money. Why isn’t she funding, not for $100 million, but why don’t you put $10 million or $20 million or $25 million or $30 million into your own campaign?
It’s $30 million less for special interests that will tell you exactly what to do and it would really, I think, be a nice sign to the American public. Why aren’t you putting some money in? You have a lot of it. You’ve made a lot of it because of the fact that you’ve been in office. Made a lot of it while you were secretary of state, actually. So why aren’t you putting money into your own campaign? I’m just curious.
While his ramblings about campaign finance might make some sense if we attempt to empathize with him and assume he is here trying to point out Clinton’s hypocritical use of funding from donations she herself has criticized, his central point (if there is one) is that his Supreme Court nominee would be a carbon copy of Justice Scalia. Which, to be fair, is not that different from Clinton’s intention to appoint a Justice who will ensure more liberal decisions (such as supporting Roe v. Wade or overruling Citizen’s United v. FEC). However, given his rhetoric during the campaign, and his general discourse, his decision is problematic in that he seems to believe the proper nominee is one who would make decisions based on the interests of a select few, rather than the whole of the American people. Like we saw in Town of Greece v. Galloway.
The Supreme Court does not exist to protect certain Americans, it exists to ensure all Americans are granted the rights and protections granted them by the United States Constitution. So, while yes I do concede that there is inherent bias in both candidate’s answers, I would likewise argue that Mr. Trump’s is representative of an intention to shift the Court toward the former.
Here’s an example of what I mean here.
I’m currently in the early stages of writing a book on the certain Supreme Court decisions that have either focused on, or influenced, American Atheists and the protection of their beliefs under the First Amendment’s clauses about Free Exercise and Disestablishment.
At the start of one of these cases (Elk Grove Unified School District v. Newdow, 2004), Justice John Paul Stevens makes a reference to Texas v. Johnson (1989), a case that addressed the question as to whether or not the act of burning the American flag in protest constituted an illegal action.
Here’s some brief facts of the case:
- During a protest outside the 1984 Republican National Convention in Dallas Texas, the defendant, Gregory Lee “Joey” Johnson, set fire to an American flag.
- He was arrested, charged with desecrating a ‘venerated object’ (an actionable offense in Texas), convicted, sentenced to one year in prison, and fined two-thousand dollars.
- He appealed to the Texas Fifth Court of Appeals, but was denied.
- He then appealed to the Texas Court of Criminal Appeals, which overturned his conviction, citing his permission to burn the flag as an action permitted by the First Amendment’s protection of Free Speech.
- The case found its way to the Supreme Court, which upheld the Criminal Appeals decision.
- Interestingly, the Court’s decision was ‘split,’ with Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy concurring in the decision against Justices Rehnquist, White, O’Connor, and Stevens.
The decision in Texas v. Johnson was a controversial one.
It still is.
This is even more apparent when we learn more about Johnson himself. Not only was he a member of the Revolutionary Communist Youth Brigade, an organization that, during the Cold War, would represent a direct assault on ‘American values,’ his actions, along with other protestors at the time, were peppered with violence and the destruction of both public and private property.
Here’s an image of Johnson with his lawyer,William Kunstler:
Case decisions like these are hard. They’re supposed to be. They should be challenging and difficult and make us think objectively about how different each and every American is from each other.
Yet, this decision also demonstrates a clear representation of the Supreme Court ensuring the protection of the First Amendment to all US Citizens. After all, if an American citizen, whose contrarian actions and opinions make him seem ‘un-American,’ isn’t equally protected as everyone else, then the First Amendment loses it’s essential meaning.
We see this as well in the case of Snyder v. Phelps (2011). Here, the Court (in an 8-1 decision) upheld the Free Speech of the Westboro Baptist Church, an organization that has become famous for, among other things, protesting funerals with hateful signs declaring “God Hates Fags.”
It is (and was) the Court’s duty to ensure that grotesque and moronic individuals like those who belong to the Westboro Baptist Church are granted the same freedom of speech as every other American citizen (such as Johnson). Otherwise, we get back to the erroneous idea that particular beliefs and actions are granted more protection than others.
Again, that’s why case decisions like these are hard.
So let’s go back to the beginning.
While yes, I might personally agree with Clinton that the Supreme Court has been shifting in a more dangerous direction (particularly concerning American religion), I’d also argue that perhaps the better answer, from both candidates, would have focused on the argument that the proper Supreme Court Justice would be someone who can look at each and every case through a dispassionate lens of objectivity. This would be someone who could review the material, learn the facts, weigh the options, and ultimately come to a decision founded upon the singular intent of ensuring fair and balanced protection for each and every United States citizen under the Constitution. Even when the defendants of these cases represent foul, oppressive, and disgusting individuals, they should still be granted the same rights as everyone else.
Of course, that’s perhaps not as sexy as the answers most people might want to hear. Nor does it fit within the present discourse coming out of this election cycle, particularly from Mr. Trump’s campaign. Then again, it’s difficult being objective. It’s difficult making sure people who disagree with you or repulse you are allowed their ‘day in court.’ It isn’t easy, and it’s not supposed to be. It’s supposed to be complex. It’s supposed to require rational, patient, intelligent, and unbiased thought.
It’s also why, in all likelihood, Mr. Trump won’t be granted the opportunity to appoint the next Justice come election day.