Moderate justice

Has the Supreme Court seen its last swing voter?

Jul 16, 2018 by

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The Supreme Court occupies the U.S. political spotlight after the retirement of Anthony Kennedy and President Trump’s nomination of Brett Kavanaugh. With the remaining eight justices evenly split on many contentious issues, the scales of justice are poised to tip. The party that controls the executive and legislative branches has a chance to establish a judicial majority as well.

The country would be better served by a Supreme Court that does not align solidly with one political camp. U.S. politics has become hyperpartisan, with few moderates left in either major party. The court needs a centrist, like Kennedy, who values fairness above ideology and does not vote predictably along liberal or conservative lines.

Recent Supreme Court decisions illustrate the impact of Kennedy’s centrist approach. He voted with the majority in Obergefell v. Hodges, the decision that legalized same-sex marriage three years ago. He even wrote the majority opinion, affirming “equal dignity in the eyes of the law” for gay and lesbian people, who “cannot be treated as social outcasts or as inferior.” And yet, just last month, he wrote the majority opinion in a seemingly opposite decision, the Masterpiece Cakeshop case, siding with a Colorado baker who refused to make a cake for a same-sex wedding.

The Masterpiece ruling bore Kennedy’s moderate imprint. It avoided setting a precedent that would give either religious liberty or LGBTQ rights the upper hand in future cases. By affirming the need to respect religious belief while also protecting sexual minorities from discrimination, the court showed it is able to rise above the winner-take-all mentality that dominates U.S. politics.

Legal analysts note that the court is far more often a follower of public opinion than a leader of change. Abortion and same-sex marriage are prime examples. By 1973, the year of the Roe v. Wade abortion-rights decision, 16 states with 41 percent of the nation’s population had already liberalized their abortion laws. Similarly, by 2015, the year of Obergefell v. Hodges, same-sex marriage was already legal in 36 states. In each case, the court conformed to an emerging cultural consensus.

Some legal analysts believe the Supreme Court is unlikely to roll back rights embedded in law, whether for 45 years or for three. While anti-abortion and pro-choice activists rally their supporters on the increasingly plausible prospect of overturning Roe v. Wade, some non­partisan observers say it is more probable that a right-leaning court will preserve the Constitutional right to abortion while upholding a growing number of restrictions imposed by the states.

Christians who abhor abortion, including those who would ban the practice and those who believe it should be legal but rare, should not depend on the Supreme Court to create a “culture of life.” While making ethical reproductive choices in our own lives and teaching them in our churches, we need to support public policies that strengthen families economically and prevent unwanted pregnancies. Widely available contraception remains a leading factor in continuing to reduce the abortion rate, which has been falling since 1981.

Every president has the right to pick fair-minded jurists who lean in their party’s direction and to have them considered by the Senate, not shut out as Obama nominee Merrick Garland was in 2016. Given the country’s increasing polarization, neither party seems likely to nominate a centrist who might mitigate the culture wars. We can expect more attempts to stack the court with reliably conservative or liberal justices, depending on which party is in power. Yet we hope the Supreme Court has not seen its last swing voter.


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