Two years ago the Supreme Court ruled against the state of Texas in an abortion ruling that had national implications, and its attacks on Roe v. Wade. The ruling came down in a 5-3 division of the court with Justices Thomas, Alito and Chief Justice Roberts dissenting – no great surprise there. But it was a yet another example, in a long line of examples of why the choice of a Supreme Court Justice matters and presents the strongest opportunity for a President to build a legacy that far exceeds their own lifetime even.
Politicians want to be partisan – it’s what gets them elected – jurists shouldn’t be. President Donald Trump is nominating justices to the Supreme Court and could be nominating at least 2 additional Justices, which means that this President will have set the judicial tone of the country for the next 25-35 years.
That is why elections matter. This is the scenario I warned about in July of 2016. It’s a troubling, disconcerting and deeply disturbing reality to those of us who honor the ideals of the Constitution, and the separation of church and state. This President seems determined to intertwine the demands of the fundamentalist Christian lobby with the judiciary in such a way that we approximate a theocracy.
Or not.
I’m not certain that a lifetime appointed justice will put their personal religious beliefs above the objective dictates of the U. S. Constitution. I am certain that a conservative Justice could vote to roll back certain rights, such as to abortion, to the state level. Do I think that the U.S. Supreme Court would outlaw the procedure across the land? No.
I imagine that any new composition of the Court would look to move the law back to the 50’s on many issues. And I do mean the 1950’s not the 1850’s.
The Supreme Court is unlikely to take us back to a strict ‘originalist’ days interpretation of the Constitution that allowed slavery, counted African/Americans as 3/5 a person and didn’t allow women to vote.
While the President may long for the days prior to the 22nd Amendment when he could in theory serve more than two terms, it’s simply not going to happen. The current President will one day be out of office.
The appointment of a new Justice to replace Justice Kennedy’s swing seat will definitely take us in the direction of the conservative Right. But as I’ve noted previously, that is not necessarily a bad thing. One person’s loss of union rights, may be viewed by an anti-union supporter as a gain. Collective action as a whole is under attack, from the loss of union power and the limiting of class action claims, which frankly result in greater wins for the lawyers than the litigants most of the time.
A less active federal government is probably a bad thing in areas like environmental controls, monopolies and financial regulation for the nation as whole. Yet, if the Supremes are pushing more matters back to the states to control, then it is up to the individual states to act. California will remain on the forefront of environmental, social and financial regulation – West Virginia not so much. As an American I can then choose where I wish to live and under what conditions. Or I can act to improve the situation in the individual states.
Where this becomes a knotty problem is on issues such as abortion – which almost certainly in some states will face greater restrictions going forward. Will gay rights change? Yes that’s likely. Will the court reverse the gay marriage cases? I doubt it.
These are two fundamentally different types of issues. They both deal with personal autonomy, but it’s in their effects on others that they differ. An abortion clearly does end at least the potential of life and therefore is literally a life and death matter. Gay marriage on the other hand, doesn’t really impact anyone but the couple. One may object on religious grounds, but in truth it has no impact on one’s life, and therefore the answer is to not get a gay marriage. But the abortion discussion, the “defending the defenseless” is a thornier issue which brings in to play the big “S” State’s role in protecting people, it’s citizens, born and unborn.
This is why Supreme Court Justices matter. This is why Presidential politics matter. We’re not just choosing a President every 4 years, we’re choosing a legacy, and a future.
David Pisarra is a Los Angeles Divorce and Child Custody Lawyer specializing in Father’s and Men’s Rights with the Santa Monica firm of Pisarra & Grist. He welcomes your questions and comments. He can be reached at dpisarra@pisarra.com or 310/664-9969.You can follow him on Twitter @davidpisarra
