Divided Supreme Court Begins New Term in Shadow of Election Politics


Cardinal Donald Wuerl, archbishop of Washington, speaks with U.S. Supreme Court Chief Justice John Roberts as they leave St. Matthew's Cathedral after the annual Red Mass in Washington Oct. 2. The Supreme Court's new term started Oct. 3.
Cardinal Donald Wuerl, archbishop of Washington, speaks with U.S. Supreme Court Chief Justice John Roberts as they leave St. Matthew's Cathedral after the annual Red Mass in Washington Oct. 2. The Supreme Court's new term started Oct. 3. (photo: AP Photo/Jose Luis Magana)

WASHINGTON — Amid the mud-slinging at the second presidential debate, Hillary Clinton and Donald Trump were asked to comment on their plans for the U.S. Supreme Court.

“I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality,” Clinton answered.

“Donald has put forward the names of some people he would consider; and among the ones that he has suggested are people who would reverse Roe v. Wade and reverse marriage equality,” she added. “I think that would be a terrible mistake and would take us backwards.”

When Trump got his turn, the GOP presidential nominee repeated his pledge to “appoint justices very much in the mold of Justice [Antonin] Scalia … people that will respect the Constitution of the United States,” though he did not explicitly address the issues of abortion and marriage equality.

As the U.S. Supreme Court began its 2016-2017 term, the striking exchange reminded the public that a shorthanded Supreme Court has emerged as a key election-year issue.

Over the next few weeks, the eight justices will hear oral arguments for a range of mostly low-profile cases, and voters will consider how the next president’s power to nominate the ninth justice — and perhaps several more, given possible impending retirements — will impact an ideologically divided court.

“We need a justice who believes that rights found in the Constitution need to be grounded in either the text of the document or the history and traditions of our people,” Teresa Collett, a professor at the University of St. Thomas School of Law in Minneapolis, Minnesota, told the Register, echoing the views of legal experts who don’t want judges legislating from the bench.

Underscoring her point, Collett pointed to several closely followed cases that featured dueling views of religious liberty, sexual rights and executive powers, from the Little Sisters of the Poor’s challenge to the Health and Human Services’ contraceptive mandate and the Texas Legislature’s failed attempt to restrict abortion businesses to Obama’s immigration orders that sought to bypass Congress but were blocked by a deadlocked court, which sent the case back to a lower court that ruled against the president.

 “Any time we are dealing with a right not expressly found in the text, we open ourselves up to the political preferences of the judiciary,” said Collett.

This term, the justices have already heard oral arguments in a Texas death-penalty case that dealt with racial bias. In that case, an African-American on death row has challenged directions provided to the jury in his trial that described blacks in capital cases as posing a greater danger than their white counterparts. Judging by the oral arguments, legal scholars predict the justices will decide in favor of the plaintiff, though it is not clear whether it will be a narrow or broad ruling.

Meanwhile, the court has agreed to hear a religious-liberty case, Trinity Lutheran Church of Columbia, Inc. v. Pauley, which challenges a Missouri law that bars religious schools from receiving public benefit grants.

Looking ahead to the spring, legal experts are waiting to see if the justices will take up a case filed by a transgender high-school student who sued to gain access to bathrooms that correspond with her gender identity. In a 5-3 vote, the justices have already issued a stay in the case. At least temporarily, the injunction will block a lower court’s ruling, which ordered the local school board to permit the transgender student, who is biologically female, to use the boys’ bathroom.

The lawsuit in the Trinity Lutheran case was filed after the church’s preschool was denied a grant from a state program that helps nonprofits purchase rubber playground surfaces. Though the school’s application received a strong rating from the state, it was denied the grant solely because it was a religious institution.

The case asks the court to decide “whether exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”

The American Civil Liberties Union has filed a brief that backs the state’s denial of the grant. But Hannah Smith, a lawyer with the Becket Fund for Religious Liberty, a public interest group that filed a brief supporting Trinity Lutheran, hopes a ruling in its favor will help overturn similar laws in about 30 states that bar religious institutions from receiving government funds.

The Becket Fund represents the Eternal Word Television Network in its legal challenge to the HHS contraception mandate. The Register is a service of EWTN.

“This would have ramifications for other programs around the country where the state may try to prohibit religious organizations from competing on an equal footing with secular organizations,” Smith told the Register.

Douglas Laycock, a religious-freedom scholar, told the Register that the case would have an important but relatively “narrow” impact on Catholic parochial schools seeking access to state funds, perhaps in school-choice programs.

“It would help Catholic schools only in states that choose to fund private schools,” said Laycock, the Robert E. Scott Distinguished Professor at the University of Virginia School of Law.

“No state would be obligated to fund private schools, but a favorable judgment in Trinity Lutheran would support an argument that no state could fund secular private schools without funding religious private schools.”

 As with other sensitive cases that have sparked discord on the court, the outcome will likely depend on whether a full complement of justices will be in place to rule on the legal challenge.

At present, experts say the court appears to be split on the issue. After a lower court decided against the school, the justices agreed to review the case last January, when Justice Scalia was still alive. However, the court still has not scheduled oral arguments in the case, noted Smith.

While the ideological balance of the court remains unsettled, experts are even more cautious about predicting the ultimate fate of a more critical religious-freedom case: the Little Sisters of the Poor’s legal challenge to the HHS mandate.

Last May, the court sent the group of cases that included the Little Sisters and the Diocese of Pittsburgh’s lawsuits back to the lower courts. Both sides were directed to forge a solution that respected the religious beliefs of the Church-affiliated nonprofits while permitting the government to provide their employees with access to the mandated services.

Since then, the government has formally solicited recommendations from the public to help craft a solution. But, in August, Bishop David Zubik of Pittsburgh attacked the administration for advancing an “extremely aggressive interpretation” of the ruling that would allow it to “take over” the diocese’s health plan.

Laycock told the Register that some of the cases will likely return to the court.

“The parties are too far apart to settle,” he suggested. “But the wait for a ninth justice might be long.”

Gerard Bradley, a longtime professor at the University of Notre Dame Law School, said it was difficult to predict what the court might do next, given the uncertainty about the ninth justice.

“Perhaps a case not involved in the [Zubik] group of cases would be ready for Supreme Court review sometime later this term,” said Bradley.

“In any event, any justice appointed by Hillary Clinton would take the position which I judge to be that of the liberal wing (Elena Kagan, Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer) and rule against the religious plaintiffs.

“Any Trump-appointed justice would likely, not certainly, rule in favor of the plaintiffs,” he said.

Justice Scalia’s death, and the urgent need to fill his seat, have raised the stakes for voters, legislators and activists who have watched the court play a decisive role on polarizing issues like the legalization of same-sex “marriage” and the constitutionality of the Affordable Care Act.

But a future president’s power to nominate justices to the nation’s highest court has always been a key election issue, noted Carrie Severino, chief counsel and policy director of the Judicial Crisis Network and a veteran of past confirmation battles for Supreme Court justices.

The next justice “will be interpreting what the Constitution means and policing the constitutional boundaries between the branches,” said Severino, who once clerked for Justice Clarence Thomas.

That said, she also noted that the date and length of the next confirmation process could depend on several factors. For example, if Clinton wins but the GOP holds onto the Senate, her choice of nominees will be constrained.

While some activists like Severino are excited about Trump’s list of prospective Supreme Court nominees, many conservatives remain skeptical about Trump’s ability to deliver on his pledges.

If the Democrats take the Senate, “they could force Trump to replace Scalia with a Kennedy-esque ‘moderate,’” warned a National Review columnist.

“The possibility that Trump would get to appoint socially conservative justices to replace any of the oldest, left-leaning justices — Ginsburg (83), Kennedy (80) or Breyer (77) — is no more likely than that they would stick around until 2020.”

Whatever the election outcome, specialists like Severino will be poised to vet the president’s pick and then gird for the confirmation battle. And those who oppose judges legislating from the bench will yearn for a man or woman in the mold of Antonin Scalia.

“My deepest hope would be for Justice Scalia 2.0 to take the vacant seat,” said Notre Dame’s Bradley, who, back in March, joined a group of  Catholic leaders that opposed Trump.

“I add the modest caveat that the best possible successor would supplement Scalia’s formidable and largely sound reliance upon the text and history of the Constitution, with occasional resort to unrestricted morality as an element of decision-making, as the Constitution itself directs.”

Joan Frawley Desmond is the Register’s senior editor.