With the death of Justice Antonin Scalia, the Supreme Court has become a critical issue in the 2016 presidential election. The next president will replace Scalia. It is documented and discussed in Chapter 14 of The Bible and Constitution Made America Great, how the philosophy of the judicial nominees has differed greatly, depending on the nominating party. There are currently four liberal-activist justices on the Supreme Court (one short of a majority). These judges usually vote as a block on issues favored by the political left. Issues such as ObamaCare, abortion “rights”, the “right” for homosexual marriage and removing religious acts/symbols from the public square.
The activist justices are rogue. Rogue justices ignore constitutional clauses that they dislike and create law to support their rulings. Courts are to enforce law, not create it. Their rulings are in fact illegal, violating the Constitution, the ultimate law of the nation. The next president will nominate at least one justice. Hillary has promised a liberal-activist. Trump has promised a constitutionalist.
The judicial philosophy of the current Supreme Court is dominated by liberal-activism. The justices by their philosophy:
4 Liberal-Activist: Sonia Sotomayor, Elena Kagan, Stephen Breyer, Ruth Bader Ginsburg. These justices (all appointed by Democrat presidents) consistently rule in the liberal politically preferred way regardless of the constitutional text.
2 Swing: John G. Roberts, Anthony Kennedy. These justices move back and forth between constitutional and activist rulings. My opinion is that Roberts rules in a constitutional manner about 75% of the time, while Kennedy does so about 50% of the time.
2 Constitutional: Clarence Thomas, Samuel Alito. These justices consistently rule according to the Constitution. The deceased Antonin Scalia was also a constitutionalist.
These latter four justices were all appointed by Republican presidents.
Three Supreme Court rulings illustrate the judicial activist philosophy in action. In each case the liberal-activists vote as a block for a political objective that a straightforward reading of the Constitution would not allow.
ObamaCare: In 2012, the four liberal-activist justices ruled to give Congress the power to control healthcare. They were joined by swing-justice Roberts to get the needed 5th vote. The ruling ignored the 10th Amendment.
Amendment X – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The 10th Amendment, part of the Bill of Rights, limits what Congress can do. A constitutionalist would rule that managing a national healthcare program is not a federal power/responsibility according to this amendment, therefore is illegal. It can be made constitutional by passing an amendment, as was done with Prohibition, where the 18th Amendment granted the federal government the power to ban alcohol.
Homosexual Marriage: In 2015 the Court decided in Obergefell v. Hodges, that the right to marry is guaranteed to same-sex couples. The four liberal-activist justices were this time joined by swing-justice Kennedy as the 5th deciding vote. The activist justices misused the 14th Amendment in their ruling. This amendment granted rights to newly freed black citizens after the Civil War. It did not mention sex or gender. The ruling also violated the 10th Amendment which leaves marriage law at the state level (where it resided for the first 225 years of America).
Liberal logic has already forced Christian bakers, photographers, restaurants, and florists to either participate in homosexual weddings, or close their businesses. It is very likely that a block of five liberal-activist Supreme Court justices will one day mandate churches either perform homosexual weddings or cease performing weddings. No one should be shocked if justices who make a practice of ignoring constitutional amendments they disagree with, will also ignore the 1st Amendment’s religious protections.
Mojave War Memorial Cross Case: In 2010 four liberal-activist justices ruled that a cross must be removed from a memorial on federal land. The cross had stood for 75 years, being erected after World War I by The Veterans of Foreign Wars (VFW). In this case the two swing justices both went with the constitutionalists, foiling the liberal-activist block. The federal courts have no right to ban any cross or any religious symbol according to the 1st Amendment (free exercise of religion cannot be prohibited). The owners of the land can decide whether a cross can be displayed (discussed in the book). In this case the landowner was the federal government, so decisions should have fallen to the President and/or Congress as the managers of the federal land. Both approved of the cross memorial. Our elected representatives decide what can be displayed or constructed on the land.
It is disturbing that Democrat presidents have been committed to placing liberal-activist justices on the Supreme Court. Our Constitution was designed to be changed by amendment (requiring a super-majority of the nation), not through the vote of five unelected justices. In essence, the Supreme Court has been acting as an illegal ongoing constitutional convention that requires 5 votes for ratification. constitutionalist justices remove this power from the court.
The practical implications of presidential voting are easily deduced. Had Obama lost the election in 2008 (McCain won), two of the liberal activist Obama appointees would almost assuredly be constitutional or swing justices. If Hillary becomes President this year, there will most assuredly be a liberal-activist justice replacing Scalia.
The Supreme Court philosophy and power is indeed a major factor in the 2016 presidential election.