The upcoming election is less about the presidential candidates themselves and more about the future of the Supreme Court and democratic (small “d”) principles. The Supreme Court is currently composed of four liberals (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), three conservatives (Chief Justice John G. Roberts, and Justices Clarence Thomas and Samuel Alito), with Anthony Kennedy in the middle. (Justice Antonin Scalia’s seat remains vacant.)
While there are many important questions that are going to be decided by this fractured Supreme Court, abortion is not one of them. The best clear chance that the conservatives had for overturning Roe v. Wade came in 1992 in a case called Planned Parenthood v. Casey. And while the original vote in conference (where justices first vote in secret) was to overturn it, Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy wrote plurality opinion upholding the central holding of Roe v. Wade. They did not do so because they agreed with it, but did so because they thought certain things are best left decided and decided correctly. Declaring “liberty finds no refuge in a jurisprudence of doubt,” they decided to leave a 19-year-old decision in place. One of those Republican (Ronald Reagan nominees), Justice Kennedy, is still on the court. So even without the Scalia seat going to a liberal jurist, there are not enough votes to overturn Roe v. Wade. Furthermore, the decision is now 43 years old. And I have a feeling, the Chief Justice, concerned about the legitimacy of the Supreme Court as an institution, will not vote to overturn the decision. So if you are voting on this single issue for Trump, you are going to be disappointed either way.
The decisions that are coming up that will have to be addressed are issues concerning the death penalty, polygamy, First Amendment, and Second Amendment. For a while now, the liberals have been chipping away at the death penalty. First, with Kennedy’s help, they ruled imposition of death penalty on a juvenile offender violates the Constitution. Where in the Constitution does it say that? Nowhere! They simply cited to social science, what they are doing in Europe, and some states that have gotten rid of the death penalty. Next they got rid of the death penalty for killers who have a low IQ. Again, nowhere in the Constitution does it say that. And now in every death penalty phase the attorney for the killers plays-up the killers’ low IQ and lack of education.
When the Supreme Court, in Lawrence v. Texas (2003), in a decision by Kennedy again, first ruled that states cannot punish gays for homosexual sodomy (overturning Bowers v. Hardwick (1986)), Justice Scalia wrote a dissent stating if states cannot pass laws dealing with morality, then all types of laws will be subject to challenge. The examples he gave included prostitution, gambling, masturbation, and polygamy. He also said, this decision will lead to gay marriage and it did. (By the way, in this case apparently “liberty [did] find refuge in a jurisprudence of doubt.”) However, Scalia’s dissent is now being used to help support challenges to laws against polygamy. A question that is offensive to gays and lesbians asks, “If two consenting adults should have the right to happiness and fulfillment vis-à-vis marriage, why can’t three or four?” If you say because marriage has always been a union between two people you would sound hypocritical because marriage has always been a union between a man and a woman. How the Supreme Court will ultimately decide the polygamy decision (which also involves First Amendment issues of free exercise of religion) remains to be seen.
There has been much criticism against Citizen United as being this evil decision which stands for corporations dumping money into elections. This case, more than any, illustrates the media bias because they never tell the public what the decision was actually about. Shortly after McCain-Feingold campaign-finance law was passed, a group of like-minded conservatives, modeling after Michael Moore’s “Fahrenheit 9-11,” decided to make a movie about Hillary Clinton. With the primary season in full swing, the Democratic nominees were jockeying for position. The top contenders, in addition to Hillary Clinton, were Senator John Edwards, Senator Joe Biden, and Senator Barak Obama. With the movie completed, Citizens United was not allowed by the Federal Election Commission to show the movie because it was considered “electioneering communication” and was too close to a primary. The Supreme Court found that this violated the First Amendment’s prohibition against freedom of speech. However, the left and the media want you to believe this is a decision about corporations dumping money into politics. Even if that were true, I have never understood why the left has such a problem with corporate executives dumping money in support of a candidate . . . If a decision like Citizen United were to go the other way, who do you think wins? The media and Hollywood; they will have a monopoly on speech.
The right to bear arms is a decision that is hanging by a tread. The decision by Scalia in Heller was a 5-4 decision. Therefore, with Scalia gone, if Scalia is replaced with a liberal, it could get overturned. So if this is a right that is important to you, you need to vote for Trump.
Our republic is strong enough that it will not allow any president to act beyond the bounds of the law or unilaterally. All these promises that I will do this or that are stupid because they cannot do anything without Congress going along with it. The area where it matters is with regards to security and Supreme Court. As to the former, Trump is more concerned about Americans’ safety (e.g. not wanting to allow thousands of Syrians into the country; how can you tell friend from foe?), than political correctness. As to the Supreme Court, the Scalia seat is in the balance and who fills that seat will likely be there long after the President that has appointed him/her.
In short, this election is about three S’s, Supreme Court, Speech, and Security. Think about them when you vote.
Hirbod Rashid practices, teaches, and writes about law in Southern California.
The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.