Just how important are presidential Supreme Court picks? [CNA]


Both major presidential candidates say that the future of the Supreme Court depends on this election – but how important is the Court to Catholics, and will the next president really shape it?

“It is certainly one of the most important things that a president does,” said Professor Michael McConnell, a law professor at Stanford University and director of the school’s Constitutional Law Center. “And because the Supreme Court has been so closely divided with so many 5-4 decisions, even one justice can make a very big difference.”

After the death of Supreme Court Justice Antonin Scalia in February, President Barack Obama nominated Merrick Garland, chief judge of the D.C. Circuit Court of Appeals, to take his place. However, Senate Majority Leader Mitch McConnell refused to confirm the nominee, saying the Senate would wait until next year to consider confirming nominees.

Thus, the Supreme Court – normally composed of nine justices – is operating with an empty seat, leading to outcomes like a 4-4 split in United States v. Texas, the case involving President Obama’s executive action on immigration. The even split allowed the lower court’s decision to stand.

Advocates of both major presidential candidates say the next president’s nomination of a justice will be one of the most important reasons to vote in the coming presidential election. And, given the age of some of the justices on the bench, several more could retire in the next few years, giving the next president the opportunity to nominate several of their hand-picked justices to the Court.

Has a president been able to shape the Court in the past? Yes, McConnell said, there are historical examples of this.

Franklin Delano Roosevelt at first saw his “New Deal” policies declared unconstitutional by an unfriendly Court; however, “by the end [of his presidency] he had named all nine” justices and “the Court was completely in congenial hands,” McConnell told CNA.

“President Nixon had the opportunity to name four justices, which marked the end of the liberal activist Warren court and ushered in an entirely new jurisprudence,” he added.

The next justice could very well determine future jurisprudence on the constitutionality of state abortion bans, abortion regulations, and religious freedom cases where, for example, businesses are sued for conscientiously declining to serve a same-sex wedding or conscientiously declining to have birth control covered in employee health plans.

Pro-life and pro-choice advocates have both touted the importance of the Court in this election.

For instance, after the Supreme Court struck down Texas’ regulations of abortions clinics in a 5-3 decision in Whole Woman’s Health v. Hellerstedt, the president of the pro-life group Susan B. Anthony List Marjorie Dannenfelser said “the stakes for the 2016 election could not be higher.”

“The next president will be tasked with selecting Justice Antonin Scalia’s replacement and up to three others,” Dannenfelser said. “We must elect a pro-life president and safeguard today’s pro-life majorities in the House and Senate.”

Meanwhile, the political arm of Planned Parenthood praised the Court’s decision. “Our next president – and the new Supreme Court justices they’ll appoint – will determine whether women continue to have a constitutional right to safe and legal abortion,” Planned Parenthood Action stated.

At the final presidential debate, when asked what kind of Supreme Court justices they would appoint, Democratic presidential nominee Hillary Clinton and Republican nominee Donald Trump gave different answers.

Clinton insisted that “we need a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community,” adding that “it is important that we not reverse marriage equality, that we not reverse Roe v. Wade.”

Trump, meanwhile answered that “I am pro-life and I will be appointing pro-life justices,” along with justices that “will be protecting the Second Amendment.” He stopped short of saying that he wanted Roe v. Wade overturned.

With the Court closely divided on important cases, the impact of even one Supreme Court justice cannot be overlooked, McConnell emphasized.

For instance, in a 2014 decision, the Supreme Court ruled that the craft chain Hobby Lobby and other “closely-held for-profit” businesses were protected from the federal government’s birth control mandate by a religious freedom law, the Religious Freedom Restoration Act.

That was a 5-4 decision with Justice Scalia in the majority, which meant that if just one justice in his place ruled differently, the Green family who owns Hobby Lobby – and other business owners claiming to run their business based on their religious beliefs – would have lost a key religious freedom case.

“The Court is very divided on questions of vital importance to believing and practicing Catholics,” said Professor David Upham, attorney-at-law and professor of politics at the University of Dallas.

On one side, four justices have been appointed by Democratic presidents and have ruled consistently together. “They vote in virtual lockstep over 90 percent of the time” and “very rarely file separate opinions,” McConnell noted.

They have voted to uphold legal abortion and same-sex marriage and have opposed the religious freedom of Catholics who don’t want to cooperate with “the evils of the sexual revolution” like “contraception, abortifacients, and the public celebration of homosexuality,” Upham told CNA.

On the other hand, three justices have voted the opposite way on these issues.

Full article…


It’s not only the specific rulings, it’s the moral example. Many people (too many) derive their moral positions from those in authority. The SC legalizes abortion and a populace that is overwhelmingly disapproving of abortion on demand shifts to a position of acceptance. A left wing government “evolves” to support homosexual profanation of marriage. Its ideologically lockstep court declares it a “constitutional right”, and a majority of the populace, including Catholics, then swings to that position.

It’s too bad that things are that way, particularly among the poorly catechized young. Catechization by a morally bankrupt government is a terrible situation, particularly among the impressionable young.

When spiritual death creeps through the nation like a poison gas, the young are the first to suffocate.


You have that backwards. The public support of same sex marriage preceded the supreme court decision.


I think it’s more accurate to say both/and. I’m fuzzy on the details, but I thought that in CA, voters voted on something to keep marriage how it was, and it was overturned by the courts. Prop 8, wasn’t it? Not everyone is in lockstep on this. However, I believe it will go that way, given that this is the logical outcome of making procreation an optional aspect of sexual expression.

P.S.: here’s an article from someone who supports gay marriage which comes to the same conclusion that contraception enables gay marriage. How gay marriage’s fate was sealed more than 50 years ago


Humanae Vitae.Every Catholic should read this encyclical.Pope Pius IV predicted everything we are living.Contraception is what got the downward spiral started.


Please note that I pointed out the prior “evolution” of our nation’s “leaders”. If my sequencing was confusing, I apologize.


Since Trump is going to lose to Clinton does this even matter?

She is going to be appointing at least one supreme court judge.


Let me ask you ,HC 's corrupt and lyng nature aside.Given the forthcoming premium spikes in the Obamacare debacle,and the fact that is is most negatively gong to impact the middle and lower class,doesn’t that seriously concern you? I know you are all in for the little guy,believing the Dems care about their plight,which is why you overlook their pro death platform,womb to tomb.


It isn’t my intention to derail this thread, but I think it’s fair to say it started before contraception. I think it’s a philosophical dilemma, but contraception is often under examined in its enabling role. Christians need to be on the same page about this, or else we’re divided and conquered.

So, that’s why I voted Trump in the hopes of allowing some legal tolerance towards Catholic practices so we could further dialogue, and with the hopes that we wouldn’t constantly have a SC undoing any advancements. The Podesta emails show that our ideological opposition think contraception is the hinge issue with which to undermine the Church; and they’re right. It affects our pro-life outreach, our sex-trafficking outreach, and our adoption outreach. How will the SC affect pro-life doctors under a liberally appointed judge? I don’t want to find out.

Here’s another article I read on the subject of the SC:

2016 and the Future of the Supreme Court

Accordingly, it is useful to consider in practical terms the legal and cultural landscape that would effectively exist if these decisions were overturned. The resulting America would be one in which:
(1) ***** Closely-held private corporations would be forced, on pain of massive fines, to provide abortion-inducing drugs and devices in the health insurance plans they offer employees, contrary to the sincerely held religious beliefs of the business owners regarding the sanctity of preborn human life (contra Burwell v. Hobby Lobby Stores, Inc., 2014).
(2) ***** Prayer at public legislative meetings would be heavily regulated in terms of content and speakers, limited to generic and undistinctive invocations or to delivery by members of different faiths according to an unspecified quota system (contra Town of Greece v. Galloway, 2014).
(3) ***** Citizens would be denied the ability to claim tax credits for contributions made to tax-exempt, nonprofit school tuition organizations that provide scholarships to private religious schools (contra Arizona Christian School Tuition Organization v. Winn, 2011).
(4) ***** A cross honoring fallen American soldiers (or any other similar Christian symbol or monument) would be forcibly removed from within the boundaries of federal land based on one person’s objection, even when the monument itself is physically situated on privately-owned land that is within the boundaries of federally-owned public land (contra Salazar v. Buono, 2010).
(5) ***** The Second Amendment would be interpreted as not protecting any individual right to possess and use a firearm for lawful purposes such as self-defense; citizens could be restricted from possessing handguns or using them for self-defense in their own homes or could be forced to keep lawful firearms disassembled or bound by trigger locks that render them ineffective for use in immediate self-defense in the home (contra District of Columbia v. Heller, 2008).
(6) ***** Partial-birth abortion by the “intact dilation and evacuation” method (which involves substantially delivering a fully formed baby before crushing his or her skull in order to terminate his or her life) would be freely practiced without meaningful restriction throughout the United States (contra Gonzales v. Carhart, 2007).
(7) ***** Monuments inscribed with the Ten Commandments would be forcibly removed from public government property based on one person’s objection, even where such a monument has stood unchallenged for decades, is situated among other items honoring non-religious historical or legal ideals and events, and was not erected as a result of any governmental effort substantially to promote religion (contra Van Orden v. Perry, 2005).
(8) ***** The Boy Scouts of America would no longer be permitted to make their own policy decision as to whether to admit gay scoutmasters, and other nonprofit organizations that engage in expressive association would be forced to admit members whose presence significantly burdens the ability of the organizations to advocate their viewpoints (contra Boy Scouts of America v. Dale, 2000).
(9) ***** Congress would be imbued with a general police power under the Commerce Clause to regulate (and create civil remedies pertaining to violations of regulations of) local, intrastate conduct that does not substantially affect interstate commerce (contra United States v. Morrison, 2000).
(10) *** The federal government could force and conscript state and local government officials to execute and administer federal regulatory programs, such as a federal scheme of gun-control requirements (contra Printz v. United States, 1997).
(11) *** Disadvantaged children who attend private religious schools would be denied remedial educational services flowing from federal funds, as they would be prevented from even being considered for services on the basis of the same neutral criteria that apply to children who attend public schools (contra Agostini v. Felton, 1997).
(12) *** Religious speech would be treated unequally and with disapprobation on university campuses; Christian student groups—because of their religious viewpoints—would be denied access to student activity fee funds that are available to non-religious campus groups (contra Rosenberger v. Rector and Visitors of the University of Virginia, 1995).
(13) *** Congress would be imbued with a general police power under the Commerce Clause to regulate (and establish criminal penalties pertaining to violations of regulations of) local, intrastate conduct (such as mere possession of a firearm) that does not substantially affect interstate commerce (contra United States v. Lopez, 1995).


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