Fast and Furious: The Battle for the Supreme Court is Shaping Up Right Now

R. Albert Mohler, Jr.
September 21, 2020

The death of Supreme Court Justice Ruth Bader Ginsburg continues to dominate the headlines, which is understandable given her historic stature and long career. Yet, her death has set the stage for what will be one of the most epic political battles in recent American history. What began as a story remembering the life and legacy of Justice Ginsburg quickly morphed into the inevitable political question: What will happen to the now vacant seat on the nation’s highest court?

That kind of question is important enough on its own, but we find ourselves in a specific context that only intensifies this present situation, namely, a volatile and contentious presidential election season. Both Republicans and Democrats are fully aware of what is at stake. Conservative Christians, however, now face an unprecedented stewardship that cannot be missed.

Indeed, the Constitution vests the justices of the Supreme Court with enormous responsibility and the safety of a life term. Over the past half century, a deep divide emerged in American legal discourse and Constitutional theory regarding how the Constitution ought to be interpreted. The differences between these two approaches are not minor—they represent two, fundamentally divergent visions for how the Constitution regulates the nation’s laws.

On an issue like abortion, for example, one group of justices rightly argue, “There is no reference to abortion in the Constitution, whatsoever—much less any Constitutional right to an abortion.” On the other hand, you have justices who made the argument that led to the 1973 case of Roe v. Wade, suggesting that it is proper to view the Constitution as a living document—a legal hermeneutic that culminates in the invention of rights nowhere enumerated in the Constitution.

Thus, the cultural left and right have been deeply divided over the Supreme Court, and that divide has magnified in recent decades. Furthermore, the vacancy of Justice Ginsburg’s seat presents President Donald Trump with a unique opportunity, namely, to appoint a justice that will alter the composition of the court in a decidedly conservative direction. If the Senate confirms the president’s nominee, that will mean that a conservative justice will assume a seat held by a liberal justice for nearly three decades. Conservatives, moreover, will have a 6 – 3 majority on the nation’s highest court.

Republicans, therefore, face a history-shaping opportunity that they must not miss. They can move the court towards a more secure conservative direction. And they also face the reality of their Republican constituents who expect decisive action in filling this vacancy with a conservative justice. Democrats, on the other hand, view this entire scenario as a nightmare—and make no mistake, they are prepared to fight Republicans with every possible measure available in their political arsenal.

Given these political circumstances, it is interesting to see the contours of the nation’s cultural conversation.

For example, Linda Hirshman wrote an article for The Washington Post with the headline, “Ruth Bader Ginsburg Had a Vision for America. Her Colleagues Thwarted it.” Hirshman argues that Justice Ginsburg advocated for a progressivist, liberal vision for America. Her vision remained unfulfilled, as Hirshman suggested, due to her liberal colleagues on the court (and Democratic leaders in the Senate) who failed to move the court in the fully progressive direction Ginsburg had hoped.

Hirshman went on to ask, “Why didn’t she step down while Barack Obama had the power to replace her?” That is a huge question, and many liberals have asked that question as the Obama administration came to an end. There was certainly pressure for Justice Ginsburg to retire so that a Democratic president could fill her seat—a notion that seemed to offend the late justice. Hirshman reveals that Ginsburg didn’t retire because she wanted a woman president to appoint her successor, which she thought would happen with Hillary Clinton in 2016.

Of course, that didn’t happen.

Hirshman, however, offers more color into why Ginsburg wanted to wait for a Clinton presidency. Hirshman writes, “We knew she was waiting for Hillary Clinton to replace Justice Antonin Scalia with a liberal, somebody with a stiffer spine for progressive battles than the one Obama had shown. Had there been five liberals after 2016, she would have been the senior liberal in the majority and able to assign all the liberal decisions. She would have been the closest thing to chief justice on a liberal court.”

This article by Hirshman offers insight into what the court would have looked like had Hillary Clinton prevailed over Donald Trump in 2016—elections do indeed have consequences.

Robert Barnes, also writing for The Washington Post, wrote an article with the headline, “Ginsburg’s Death Sets Off Political Battle Over Her Replacement, Supreme Court’s Future.” Another article by Michelle Goldberg for The New York Times had the headline, “Can Mitch McConnell Be Stopped?” The subhead of her article stated, “If Republicans give Ruth Bader Ginsburg’s seat to some Federalist Society fanatic, Democrats should pack the court.”

This is where we are as a nation. The cultural left has been in control of the Supreme Court for years. The death of Justice Ginsburg has now brought them to the point of absolute panic with the possibility of a stable, conservative majority. We can appreciate, moreover, the candor of Goldberg’s article, which laments the filling of Justice Ginsburg’s seat with a “Federalist Society fanatic.” The Federalist Society is made up of law school students and graduates who commit themselves to a strict, constructionist and originalist interpretation of the Constitution. In any previous century in American history, you wouldn’t have to use those terms—that would have meant reading the Constitution as the Constitution.

Nowadays, the progressivist understanding of the Constitution departs from the meaning of the actual words and sentences of our nation’s governing document, making it say whatever jurists want it to say, inventing rights to suit the political agenda of the cultural left. That’s what happened in Roe v. Wade, and that is exactly what happened in Obergefell v. Hodges, when the Supreme Court legalized same-sex marriage in all fifty states.

Now, however, as The New York Times article by Goldberg suggests, there is a threat to that progressivist goal. If Republicans move forward with filling the seat, as they are expected to do, Democrats and their allies have unleashed a flurry of warnings, promising acts of retribution, such as “packing the court.”

These warnings were made clear in another article that appeared in The Los Angeles Times by Erwin Chemerinsky, one of the most influential liberal legal scholars in the United States, who serves as professor and dean of the School of Law at the University of California at Berkeley. The headline of his article read, “Democrats Have a Secret Weapon to Thwart a Rapid Ginsburg Replacement, They Should Use It.” He argues, “One way for Democrats to make clear that they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that if they take the White House and Senate in November, they will increase the size of the Supreme Court to thirteen justices.” Why the magic number of thirteen? Because this would add four additional seats to the Supreme Court, which means that if Democrats secure the White House and the Senate this November, they will “pack the court” with four liberal justices. That would create a nearly invincible liberal majority on the court.

The idea of court packing goes back to the presidency of Franklin Delano Roosevelt. President Roosevelt sought to expand the number of seats on the Supreme Court because he was frustrated at the slow pace of the court, which encumbered his own legislative agenda. He tried to expand the court and appoint justices to those seats who would move the court along in a favorable direction for his policies. As powerful as he was, however, President Roosevelt couldn’t pull it off.

To be clear, Democrats have made this threat time and again, especially in the 2020 election year. Indeed, Pete Buttigieg, who ran for the Democratic Presidential Nomination, made part of his platform a plan to expand the number of seats on the Supreme Court. These are, therefore, not empty threats from liberals and Democratic lawmakers.

We are witnessing a threat to our entire Constitutional order.

Indeed, if Republicans fill the seat before Election Day, and if the Democrats then win the White House and a majority in the Senate, and if the Democrats make good on their promise to pack the court and expand the seats on the court to thirteen, what’s to stop Republicans from adopting the same tactic when the balance of power shifts in their direction? What’s to stop them from expanding the number of justices to twenty-five seats on the Supreme Court?

This is Constitutional insanity. The founders framed the Supreme Court as the least dangerous and least political branch of the federal government. Now, however, it is quickly becoming the seat of American political drama and it is the left that bears the responsibility for politicizing the Supreme Court, turning it into an engine for legislation, securing policy objectives that Democrats never could have attained through the normal, legislative process.

Legislation is political, the judiciary is not. When judges take on legislative function, they transform themselves into political operatives for whatever political ideology holds a majority of the seats on the court. Instead of a national conversation and debate about the most pressing moral and political issues, a simple majority of a few, unelected judges decide by judicial fiat what the entire nation must now abide by—that is exactly what happened with abortion and same-sex marriage.

Hence the panic of the left. Their most precious cultural gains did not come through legislation, but through litigation. Take away their progressivist majority and now, all of a sudden, their entire agenda begins to crumble. Indeed, progressivists view history as moving in a leftist direction—a philosophy that goes back to Hegelianism. History, they believe, bends toward a liberal direction.

Thus, any threat to that vision must be understood as an aberration that must be overcome and swiftly destroyed.

This is our current moment and Christians in America must understand the enormous stewardship presented to us in this election year. The death of Ruth Bader Ginsburg has made the ideological and worldview fissures clearer. The importance of this election could not be made more apparent. On November 3rd, this nation will decide who will make future appointments to the Supreme Court, and the stakes could not be any higher.

R. Albert Mohler, Jr.

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