The Gospel Coalition

How Evangelicals Can Help Fix the Supreme Court

American evangelicals have a Supreme Court problem. But it’s not the problem you might assume.

If you’ve read blogs or social media during this election season you may be under the impression the most important concern of evangelicals is the Supreme Court, or issues on which the court will have a significant influence. However, a recent poll by LifeWay Research shows that for Americans with evangelical beliefs, few consider Supreme Court nominees, religious freedom, or abortion as the most important consideration in how they would cast their vote for president.

The poll asked which characteristic is most important for deciding how they will vote for president. Shockingly, only 10 percent of evangelicals say their main concern is likely Supreme Court nominees. Additionally, only 7 percent said their top concern was protecting religious freedom, and a mere 4 percent said they based it on the candidate’s position on abortion.

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(In contrast, another recent Lifeway poll of Protestant pastors found pastor were almost twice as likely to say those issues were a top concern: 20 percent for likely Supreme Court nominees, 12 percent for protecting religious freedom, and 10 percent for abortion.)

If this finding surprises you, you’re not alone. Until recently I had assumed a majority of evangelicals were willing to overlook a nominee’s disqualifying character for the sake of saving the Supreme Court. But more evangelicals (15 percent) still consider personal character a more important reason for voting for a president than whom that person will select for the Supreme Court.
The public argument on the pragmatic issue of the Supreme Court is not supported by actual poll numbers.

We Don’t Need the President to Fix the Court

The problem is not, as I had assumed, that most evangelicals are willing to sacrifice our gospel witness for the sake of the Supreme Court (whether they are willing to do that for other political reasons remains to be seen). Instead, the problem is that few evangelicals would be willing to support actions that could truly fix the court.
There is a way to address the near-term problem of the Supreme Court and set up a path for a long-term solution. It's much more palatable than voting for Trump or Clinton and can be implmented no matter who gets elected on November 8. The reason we’ve missed it before is because we’ve been fixated on the executive branch rather than the legislature. But it’s the Congress that has the power to make a simple and elegant change that could have a positive effect on the Supreme Court for generations to come.
In a recent issue of First Things, Kevin C. Walsh outlined what should be done:

Congress should move to reduce the size of the Supreme Court to seven. The Constitution leaves the number of seats on the Supreme Court up to Congress, which first set the size of the court at six. Our country went for almost fifty years before there were nine seats on the Court. For a short period, Congress moved the size up to ten, then back down to seven, before settling at nine in 1869.

It’s unlikely that any president would sign legislation decreasing the size of the Supreme Court on his or her watch. But as a practical matter, simple refusal by the Senate to act could accomplish the same thing. Some might condemn this as obstruction. But in the wake of a presidential election like this year’s, in which the main virtue of a vote for either candidate is that it is not a vote for the other one, nobody should be permitted to claim a mandate to shape the future of the judicial branch. Inaction might be a fruitful way of using inertia to accomplish a reform agenda for the Court.

Going down to seven seats would take care of the Scalia vacancy. And the next vacancy would vanish as soon as it appears. There would be no problem of tie votes (to the extent that is a problem), and seven justices have the capacity to do the work currently done by nine. By historical standards, the number of decisions is at a record low and support staff is at an all-time high. The justices also pretty much take the whole summer off. Practicalities aside, one can hope that congressional action to impose a “cooling off” period on appointments to the Supreme Court would promote judicial introspection. And that, in turn, might lead the justices to cut back on finger-to-the-wind adjudication that discredits our legal system and contributes to our dysfunctional confirmation process.

Constitutional Solution

Lest you think this is some obscure conservative claim about the Constitution, let’s look at what the Supreme Court’s own website has to say. On the court’s FAQ page, they answer the question, “Who decides how many Justices are on the court? Have there always been nine?

The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred.

Congress has both the power and authority to change the number of justices. While an even number (six) might be preferable, limiting the court to seven justices is likely more tenable. Since sitting justices can only be removed by impeachment, the full effect of the change would have to wait until another justice retires. But because the there are currently only eight justices, the long-term solution could begin by simply not filling the vacancy left by Justice Scalia.

That idea is more possible that you might have assumed. Last week Sen. John McCain (R-Ariz.) suggested the Senate would block any of Hillary Clinton’s nominees for the court. And this week Sen. Ted Cruz (R-Tex.) hinted that the number of justices could remain at eight. “There is certainly long historical precedent for a Supreme Court with fewer justices,” Cruz told The Washington Post.

The reaction to this idea has been about what you would expect in a country where civics education is woefully lacking. (One particularly ignorant and hyperbolic response came from a writer at Paste Magazine who said McCain’s action would be “tantamount to treason.”) But despite howls of protest by both Democrats and Republicans, this is a perfectly legitimate and Constitutional approach for the Senate to take.

The initial responses, though, show the proposal won’t be politically popular. However, the plan could still be politically feasible if evangelicals of all stripes would unite in support the reduction. To do this would require two things to happen.

What Evangelicals Can Do (But Probably Won’t)

The first step requires socially conservatives evangelicals who normally vote for Republicans to publicly support this change now—even if Trump wins the presidency. In the short term, allowing Trump to choose the nominee may return us to the unworkable status quo that existed before Scalia’s death. In the long term, leaving the seat unfilled would reduce the power of the court (by increasing the number of tie votes) and provide us time to pressure the Senate to make the necessary changes to the Judiciary Act.

The second step would be for socially conservative evangelicals who normally vote for Democrats to publicly support this change now—even if they intend to vote for Clinton. For a variety of reasons, black and Hispanic evangelicals rarely support socially conservative candidates. Even when they are strongly concerned about abortion or religious liberty they cast their votes for candidates who work to increase access to abortion and curtail religious freedom. While this is political reality unlikely to change anytime soon, evangelicals who support Democrats could still have an influence on social concerns if they would agree to require, as a condition of their continued support, that their Senators reduce the number of unaccountable and activist justices that are allowed to sit on the court.

Could this alignment happen? There’s no reason why it could not. After all, most evangelicals are aware of the 40-year history of threats to life and liberty that have resulted from an activist court. This election has also shown what happens when a vocal subset of our community is willing to make whatever concessions are necessary to elect a president who will choose acceptable court nominees. Even if reducing the number of justices won’t completely solve the problem (that would require a return to originalism by the court), the idea should have an obvious appeal to evangelicals who want to put a check on the unrestrained power of the court and reduce the importance of nominating process on presidential elections.*

Will this alignment happen? Unfortunately, the answer is it most likely will not. As this election has shown, evangelicals are notoriously short-sighted, short-term thinkers when it comes to politics. We’ve seen evangelicals claiming—with complete seriousness—that we are doomed, and our very way of life is threatened by allowing the wrong person to be elected president. A group that traces its history back to martyrs in the Roman Empire now laments that the faith may not survive the next four years of a democratically elected politician. That sort of ahistorical apocalyptic lament is not conducive to the sort of long-term strategy that is needed to fix the court.

Do we have reason to hope the court can be reigned in? We do, at least in the long-term. We have a viable solution that can be implemented either now (unlikely) or in the future (a possibility). With each vacancy on the court we are provided another opportunity to implement our fix.

We evangelicals have the power to help fix our Supreme Court problem. Now all we need is courage and resolve to implement the change.
* With the exception of Coolidge, Ford, and Carter, every president since Theodore Roosevelt has been able to appoint two people to the Supreme Court. Reducing the number of justices to six or seven would reduce the number of potential vacancies by either 22 or 33 percent, thereby reducing the power of each president over the Court. This is especially relevant since the justices stay on the bench even longer now than they have in the past. (Since 1971, the average age of retirement for a Supreme Court justice has been 78.7, according to a 2006 study published in the Harvard Journal of Law and Public Policy. Before 1971, the average age for a justice to leave office was 68.3.)

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