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, before Justice Scalia’s death, the Court voted to grant review of a case called Friedrichs v. California Teachers Association, in which public sector employees wanted the right not to pay compulsory union dues. This case raises an important question about free speech: can the government force you to contribute money to a political cause you oppose? Without Justice Scalia’s vote, the Court split evenly, leaving the issue to be resolved by a future Supreme Court—the deciding vote to be cast by the future ninth justice.
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, with Justice Scalia in the majority. If he is replaced with a liberal, Citizens United will likely be overturned, and the right to free speech will be greatly diminished.
The First Amendment also protects religious liberty, another of our endangered core rights. Before Justice Scalia passed away, the Supreme Court granted review in Trinity Lutheran Church of Columbia v. Pauley, 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. With other attorneys general, I filed a brief supporting 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.