SALT LAKE CITY — During election season, candidates often act as if they can predict the future, especially when it comes to the Supreme Court. But recent rulings on abortion and LGBTQ rights serve as a reminder that surprises are guaranteed.
In each decision, at least one justice appointed by a Republican president joined with the court’s four most liberal members to deal a blow to conservative interests.
Chief Justice John Roberts’ concurring opinion in the abortion rights case Monday enabled controversial restrictions on abortion providers to be overturned. And Justice Neil Gorsuch wrote the majority opinion extending employment nondiscrimination protections to gay and transgender workers, which Roberts also joined.
In the wake of these rulings, many of President Donald Trump’s most fervent supporters repeated a familiar refrain. They reminded voters of the significance of future judicial appointments, arguing that victories will come if Trump remains in charge of nominations.
“This ruling underscores the importance of elections,” said the Rev. Frank Pavone, who is the national director of Priests for Life and helps coordinate the Trump campaign’s outreach to Catholic voters, in a statement released after the abortion rights ruling.
Similar appeals helped carry the president to victory four years ago. More than one-quarter of Trump voters in 2016 said future Supreme Court nominations was the most important factor influencing their vote, according to The Washington Post.
Then and now, many legal experts recommended against casting a vote in a presidential election with the Supreme Court in mind.
People who place their hope in future judicial appointments are asking for trouble, argued Marc DeGirolami and Kevin Walsh, who are both law professors, in a 2018 column for The New York Times.
“The Supreme Court cannot save a degraded culture, nor can it degrade a virtuous one — not too much in either direction, at least,” they wrote.
In other words, justices are shaped by the same forces that shape everyday Americans. As the country grows more accepting of various practices, such as same-sex marriage, so too does the Supreme Court, DeGirolami and Walsh wrote.
What this means is that justices evolve over the course of their time on the court. And, unlike presidents or senators, you can’t vote them out of office if you don’t like where they end up.
In many cases, you can’t even punish the person who appointed them, since they’re either already out of office or just as surprised as you.
Voters who focus on Supreme Court appointments “make their No. 1 voting priority something they can’t even hold the person they’re voting for accountable to once they’ve made the appointment,” wrote Michael Wear, who previously worked on religious outreach for President Barack Obama, in a recent op-ed for The Washington Post.
Another argument against placing too much emphasis on Supreme Court appointments is that few justices want the Supreme Court to be seen as an activist institution. For the most part, they stick with narrow decisions and let members of Congress and other policymakers pursue broader legal changes.
Roberts embodies this modest approach, according to legal scholars. In this term’s abortion rights case and in many previous rulings, he has joined with his more liberal colleagues at least in part because he’s interested in showing that the court functions best when it does not take cues from political interests.
Roberts “appears to be less concerned with (particular) cases and outcomes than with the principle that making judges a political prize can’t be allowed to work,” tweeted Steve Millies, an associate professor of public theology at Catholic Theological Union in Chicago, Monday after the Supreme Court released its abortion rights decision.
In light of these realities, voters concerned about the future of abortion, religious freedom and other issues would be better served by focusing less on the Supreme Court and more on nurturing dialogue about their concerns and try build understanding of their perspective, political experts said.
“Conservatives seeking lasting change are better advised to attend to our failures in the broader culture than to prepare the way for our Supreme Court savior,” DeGirolami and Walsh wrote.
It’s clear from recent tweets that the president disagrees with this conclusion. Even after Gorsuch, who was one of his own nominees, joined with liberal justices to expand federal LGBTQ nondiscrimination protections, Trump has continued to offer Supreme Court-related predictions and promises.
“The recent Supreme Court decisions ... tell you only one thing. We need new justices of the Supreme Court. If the radical left Democrats assume power, your Second Amendment, right to life, secure borders and religious liberty, among many other things, are over and gone,” he said on June 18.
Trump also vowed to update his list of potential future Supreme Court nominees to ensure that voters know where he stands.
In his column for The Washington Post, Wear urged religious conservatives and moderates to stop thinking of the president and his potential Supreme Court nominations as their only defenders.
Elections offer an opportunity to begin a conversation with all candidates about your interests and concerns, he said. That, and not the future of the Supreme Court, should be voters’ focus over the next few months.