No matter your election issue, your vote will decide it because of a vacancy on the Supreme Court

The next Supreme Court justice will make decisions that define the nature of our government and our society for many years to come. Make no mistake about it, the liberal justices on the Court nearly always vote as a bloc.

In thinking about the kind of person who should take his seat on the Court, it is worth reflecting on Justice Scalia’s principles of jurisprudence. One of the chief principles he championed, as a scholar and as a judge, is that the law, whether statutes or the Constitution itself, must be applied according to its text. In other words, judges should not apply the law based on what is good policy or what they suppose Congress may have intended (but did not express) in passing legislation.

In addition, Justice Scalia believed that the words of the law should be understood as they were understood by the people when the law was enacted. For example, if you strike a bargain with someone, and later there is a dispute about that bargain, how do you interpret the words of your contract? Do you look to what the words of the contract meant at the time you agreed to them? Or do you look to what those words mean ten or 50 years after the fact? There are some who believe that the meanings of words change over time, untethered from any objective measure.

These two principles, textualism and originalism, are rooted in a third characteristic of Justice Scalia’s jurisprudence: an unwavering respect for the idea of popular government. Laws, including the Constitution, receive their legitimacy from the people. The Constitution is not an autonomously evolving document that spins out new “rights” and obligations to which the people have not given their consent. Rather than discovering new rights in the Constitution, judges should respect the constitutional prerogative of the people to pass laws through their representative legislatures, limited by the restraints imposed by the Constitution—which was itself ratified by popular means.

Along with this opposition to creative interpretation of the Constitution, a fourth characteristic of Justice Scalia’s life work was a conviction that the rights actually guaranteed in the Constitution should be tenaciously defended.

In short, Justice Scalia rejected the judicial activism of inventing law while embracing judicial engagement by ensuring that the limits on government are strictly enforced.

Ensuring that the next justice appointed to the Supreme Court is someone in the mold of Justice Scalia is surpassingly important. Not since the New Deal has the country had a conservative majority on the Supreme Court. For 60 years, the Court has been either decidedly liberal or split between liberals and conservatives. For 25 years, the Court’s most controversial and closely-divided cases sometimes had a liberal outcome, sometimes a conservative one. At the time of Justice Scalia’s death, the Court consisted of four unwavering liberals (Justices Ginsburg, Breyer, Sotomayor, and Kagan), three solid conservatives (Justices Scalia, Thomas, and Alito), a fourth who votes with the conservatives much of the time (Chief Justice Roberts), and one swing vote (Justice Kennedy). Replacing Justice Scalia with a liberal would fundamentally alter that balance, creating a solid majority of five liberal justices that would ensure liberal outcomes to all controversial decisions.

Make no mistake: the liberal justices on the Court nearly always vote as a bloc. Whereas the conservative justices occasionally depart for reasons of judicial philosophy from what some might consider the conservative outcome—as Justice Scalia often did—one is hard-pressed to find decisions where a liberal justice’s vote is in question. To illustrate the point, in the Supreme Court’s 2014-2015 term, the four liberal justices agreed with each other over 90 percent of the time—more agreement than between any two conservative justices. For example, Chief Justice Roberts agreed with Justice Thomas in only 70 percent of cases. If the liberal wing of the Court is given a five-justice majority, we should expect that no controversial decision of the Court will ever be in doubt.

Let me provide a survey of the important issues the Court might decide in coming years, once a ninth justice is appointed.

One of the issues coming before the Court will concern a basic liberty essential to democracy: freedom of speech. Under assault these days is the freedom to spend (or not spend) money on political speech. For example, … an important question about free speech: can the government force you to contribute money to a political cause you oppose?

On the other side of the free speech coin is the continued vitality of the Court’s Citizens United decision. Let me clarify a common misconception: Citizens United did not hold that corporations are allowed to give unlimited amounts to political candidates. In fact, the laws limiting the amount of campaign contributions to a few thousand dollars are still valid and in place. Rather, in Citizens United, the Court held that the government may not limit the amount of money spent—whether by individuals, unions, or corporations—on their own independent political advocacy. This case was decided 5 to 4.

The First Amendment also protects religious liberty, another of our endangered core rights. … a case which will decide whether certain state laws called “Blaine Amendments” are constitutional. Blaine Amendments are provisions added to state constitutions during a time of anti-Catholic fervor—they date back to the 1870s—that prevent any state funds from being used to benefit a church or a religion for any reason. This means that states running programs that provide resources to private institutions must discriminate against religious institutions, even if the program being funded is not religious. In the Trinity Lutheran case, a Missouri program was providing scrap tires for flooring in playgrounds to make them safer for children. Because of a Blaine Amendment, the State refused to provide tires to church schools. … the effort to get these Blaine Amendments struck down. The new justice is likely to cast the deciding vote on whether to remove this legacy of legal hostility to religion.

Freedom of religious conscience also hangs in the balance. We have seen this in the Hobby Lobby case, where the Court protected the right of religious employers not to fund abortions. So too in the Little Sisters of the Poor case, where the Court has, for now, narrowly avoided the question of whether Catholic nuns can be required to cover contraception in their health insurance plan. Other cases regarding freedom of conscience are on the horizon. The Court recently declined to review a case that upheld a Washington law that requires pharmacists to sell abortion drugs despite religious objections. Similarly, a case may soon reach the Court to decide whether civil rights laws can be used to force, for example, a Christian photographer to use her artistic skills to celebrate a same-sex wedding.

Moving to the Second Amendment, the next justice will likely cast the deciding vote on whether to continue to recognize an individual right to “keep and bear Arms,” or whether to interpret that right so narrowly as to effectively do away with it.

Other issues that hang in the balance include the death penalty, affirmative action, regulation of the abortion industry, and voting laws. But I want to focus on one final set of constitutional questions that have reached their tipping point in recent years—questions having to do with the structure of our Constitution.

Contrary to what many believe, the primary guarantee of our liberty in the Constitution is not the Bill of Rights. Rather it is found in the structure of government under the Constitution, which is designed to prevent accumulation of power and oppression of the people.

Since at least the New Deal, the executive branch has been accumulating more and more power, and the current administration has taken unilateral executive authority to new levels.

Most recently, the President and his agencies have attempted unilaterally to mandate accommodations nationwide for transgender people by rewriting laws like Title IX, which prohibits discrimination based on sex. They are attempting to do so by redefining the word “sex” in the law.

Another way President Obama has expanded his power is by refusing to enforce laws he does not like, effectively repealing them. He has done this with immigration laws by designating entire classes of people as having “legal status,” even though the law clearly states that they are unlawfully present. Similarly, his administration has effectively legalized marijuana in certain states by refusing to enforce federal laws prohibiting it.

The next Supreme Court justice will not only decide the outcome in pending cases, he or she will also influence the type of cases that make it to the Court in the first place.

The appointment of the next Supreme Court justice could be the most legally significant event for our country in a generation. If the next justice is in the mold of Justices Ginsburg or Sotomayor, the rulings of the Court will shift dramatically to the left. If the next justice shares the principles and philosophy of Justice Scalia, the ideologically balanced Court that we have grown accustomed to in the last quarter century will likely remain.

…. the next Supreme Court justice will make decisions that touch on the rights of every American and that may come to define the nature of our government and our society for many years to come.

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