Court’s Spotty Performance Fuels Talk About Supreme Court Nominees

The Supreme Court of the United States has been maddeningly unpredictable in 2020.

Ever since the 2017 confirmation of Justice Neil Gorsuch and the 2018 confirmation of Justice Brett Kavanaugh, the Court has consisted of five Republican appointees and four Democratic appointees. The addition of the two new justices, coupled with the 2018 retirement of Justice Anthony Kennedy (who had been a thorn in the side of conservatives for many years, especially on issues of marriage, family, and sexuality), was expected to move the Court in a reliably conservative direction.

Sadly, the Supreme Court has been anything but reliable this year. While the Court has issued three much-appreciated religious liberty decisions (Espinoza v. Montana Dept. of Revenue, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, and Our Lady of Guadalupe School v. Morrissey-Berru, respectively), it has missed the mark in an abortion case (June Medical Services v. Russo), a major case on sexuality and gender in the workplace (Bostock v. Clayton County, Georgia), and a case pertaining to fair treatment of churches during COVID-19 reopening (Calvary Chapel Dayton Valley v. Sisolak). Chief Justice John Roberts sided with the Court’s liberals in June, Bostock, and Calvary Chapel, and Justice Gorsuch blindsided conservative Americans by penning the majority opinion in Bostock (which has been described as an “unprecedented betrayal”).

The understandable consternation at the Court’s disappointing performance has led to discussion amongst conservative leaders about the Republican Supreme Court nominee selection process. (The fact that Justice Ruth Bader Ginsburg, 87, is fighting cancer for the fifth time has added a sense of urgency to these discussions.)  The problem has been clear for decades: When a justice of the Supreme Court is appointed by a Democratic president, that justice can be relied upon to join the liberal wing of the Court. (The last non-liberal Supreme Court justice appointed by a Democratic president was Justice Byron White, a centrist nominated by President John F. Kennedy in 1962.) In stark contrast, Presidents Richard Nixon, Gerald Ford, Ronald Reagan, George H.W. Bush, and George W. Bush all nominated Supreme Court justices that became disappointments to conservatives; the most recent of these disappointments is Chief Justice Roberts.

What, then, could Republican presidents do differently when selecting Supreme Court nominees? U.S. Sen. Josh Hawley (R-MO) has called for Supreme Court nominees to go on record about their views on controversial Supreme Court decisions. Recently, Sen. Hawley declared that he would not vote in favor of any Supreme Court nominee who did not “explicitly acknowledged that Roe v. Wade was wrongly decided.” Sen. Hawley added that he believes religious conservatives should be given a greater voice in the selection process. Other conservative observers, however, argue that the process that President Trump has been using is working, and that he should stay the course. Still others believe that persons from the political branches of government (such as Sen. Ted Cruz, R-TX) should be considered, as their records indicate whether they are willing to take difficult stands.

In the event of a Supreme Court vacancy in 2020, many observers believe that Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals is the most likely appointee. Judge Barrett has been a federal appellate judge since 2017, previously taught at Notre Dame Law School, and has a conservative resumé. Other potential Trump nominees to the Supreme Court include Judges Raymond Kethledge, Neomi Rao, Amul Thapar, and Cory T. Wilson.