The public does not elect members of the Supreme Court. We elect an office holder, who selects a nominee, and such nominee must then be confirmed by the US Senate. Once confirmed, a Justice of the Supreme Court serves for life, unless impeached and removed from office.
Because of the death of Justice Scalia, this election takes place against a background of one vacancy on the Supreme Court. There are other members whose health and age make additional vacancies likely to happen during the next four years. Because of this, we know the next President of the United States will make at least one, and perhaps several appointments to the highest court in the land.
There are several issues that invade every aspect of our lives which the Supreme Court either has or will be asked to decide.
Should men who “self-identify” as women be permitted to use a woman’s bathroom? Should this be allowed even if there are minor children in the bathroom? This issue is now winding its way through the Federal Court system.
Should all churches be subject to public accommodation laws? If so, can churches be required likewise to allow men into women’s restrooms, even if minor children are in the same bathroom? The Massachusetts Attorney General is threatening to litigate this very issue.
Is Obamacare constitutional? It has been upheld in a split decision based on the power to adopt a tax, despite the fact that Obamacare would be unconstitutional if based on the power to regulate commerce. However, since it originated in the US Senate, and the power to adopt a new tax is confined to bills originating in the US House of Representatives (Article 1, Section 7, Clause 1), will this make the law unconstitutional?
When a rancher in Wyoming excavated an area along the stream on his property, and created a pond, did that subject his property to regulation by the EPA under the Clean Water Act? The EPA imposed a $20 million fine claiming they had that right. If the Supreme Court were to weigh in on such a dispute, what would they decide?
Are the limits of the Second Amendment broad or limited? Is the right of citizens to “keep and bear arms” broad enough to allow few regulations? On what basis can there be restrictions?
Is executive legislative action taken by any President of the United States an unconstitutional invasion of the legislative power confined to Congress? If not, how far can an executive impose “executive orders” which defy, neglect or contradict legislative action taken by Congress?
Everything from how you are investigated about an alleged crime, to how you are charged with an alleged crime and how you are to be prosecuted for the alleged crime is up to the Supreme Court. That court alone determines the extent of governmental power, and what steps are necessary to protect your rights against self-incrimination, due process, protection against cruel and unusual punishment, and right to legal counsel. Do these protections apply to US Citizens if the Commander in Chief employs a drone to kill people in foreign lands?
Recently a divided Federal Appeals Court upheld a law requiring the Catholic Little Sisters of the Poor to provide abortion and contraceptive care, contrary to Catholic Church teachings. The decision means the Little Sisters of the Poor face up to $2.5 million a year in fines.
The Fourth Amendment protects citizens from unreasonable searches and seizures. Federal agencies are spying on citizens at an unprecedented level because of Internet, email, smart-phones and social media. The Supreme Court will be asked to determine what, if any, limits the Constitution provides to citizens under this Amendment.
The extent to which government can oppress, impose its will, tax, regulate, spy, and burden you and your property is decided in the final analysis by the Supreme Court. If Congress oversteps its limits, the Supreme Court can nullify their acts. If the President oppresses or acts illegally, it is up to the Supreme Court as the final arbiter to reign him in.
The potential justices nominated by the next President to serve on the US Supreme Court may have greater effect on your life, liberty and property than will the President. As you vote, you may want to consider the likely selection to be made by the only two candidates who stand any chance of being elected. Throwing a vote away for some symbolic gesture, as recent polling suggests Utah is now willing to do, means abdicating the decision to others (if this election is close). This seems foolish, given the enormous importance of the role the next President will have in filling the US Supreme Court.
The difference between the likely appointees of the two candidates cannot be fully known until an appointment is made. But there are two competing judicial philosophies that broadly reflect these differences:
A conservative judicial appointment would generally favor allowing social change to come slowly and to be accomplished by legislation. This approach allows elected officials to reach a consensus through compromise legislation. An activist liberal judicial appointment would view the court as an agent of change. Instead of following behind public consensus, the court’s decision can compel social changes even without a national consensus. These different approaches result in very different decisions. It is often the case that an activist decision changes society, but leaves scars and turmoil because there was no attempt to reach a consensus. Should the Supreme Court have the power to usurp the people and attempt to reshape our society?