With the loss of Ruth Bader Ginsberg on the U.S. Supreme Court, conservatives are giddy with the prospect of replacing her on the Court before the upcoming election. Many LDS Republicans I know stated that their sole reason for voting for Trump (although they favored other candidates) was to get conservative Supreme Court nominations. This has become one of the biggest energizers of the conservative movement in the United States. And they definitely got what they wanted in that regard.

This morning, Twitter was trending with the word “Spineless” in reference to Mormonism’s own Mitt Romney. Many Democrats had assumed that his willingness to vote yes on one of the articles of impeachment meant that he would uphold the precedent conservatives set that no SCOTUS nominations should occur in an election year. This was the justification used to block Merrick Garland, Obama’s final nomination, a justice with support from both parties, but apparently not enough. Before RBG could be laid to rest, Senate Majority Leader Mitch McConnell gleefully announced that they would push through a nomination (the third of this presidency) immediately, ahead of the election which is in three weeks. The actual confirmation is likely to occur during the “lame duck” period in which elected officials that have not be re-elected are completing their terms before their successors take over.

Violating this norm of delaying nominations when openings occur during an election was viewed as hypocrisy by the left, but since the left has no power to block it, I suppose that doesn’t really matter. Partisan politics rule in this country. There is no longer any pretense that working across the aisle is a virtue. What’s going to happen is going to happen. Might makes right. People will use whatever power they have to accomplish their priorities. This strategy only works when voters approve of it. The more partisan voters generally do. The independents may find it unsavory. It’s likely that Romney will be the deciding vote in confirming Trump’s conservative SCOTUS pick. Pushing this nomination through so quickly is desired by the right because polling shows they may lose both the presidency and the Senate majority in the upcoming election.[1]

That picture of Mitt eating those bland scallops, looking like Trump just made him eat an actual turd, still says it all to me–and not just about the culinary quality of Trump’s hotels. But is Romney spineless (acting out of social pressure or fear of negative Trump Tweets) or like many Mormons does he want to fill the court with conservative justices because that’s his priority? He says the latter, and that’s probably true.[2] So what are these conservatives hoping SCOTUS will do for them? Here’s a list of things that I’ve heard discussed:

  • Abortion. This is by far the most oft-cited reason most of my Mormon friends voted for Trump, despite the fact that the current GOP’s actions are far more draconian and anti-choice than the Church’s stance (not allowing exceptions for rape, incest, health of mother or viability of fetus as the Church does). That so many of my fellow Mormons are sucked into this argument gives me real pause about the ability of Mormons to engage in critical thinking, empathy and compassion. Additionally, we do not have a theological reason to believe that the spirit enters the body at conception as do Catholics, as I have blogged about before. While nearly everyone in the know thinks that overturning Roe v. Wade is unlikely due to precedent, conservatives are still interested in letting states enact anti-choice legislation that makes it nearly impossible to get a safe, legal abortion in their state. Some legislators have gone so far as to claim that it’s not possible to get pregnant from rape, and to recommend criminal investigation of miscarriages to ensure they weren’t the byproduct of an abortion. Additionally, some states have added obstacles to abortion that are designed to prevent women from getting access, such as requiring multiple invasive and unnecessary pelvic exams, requiring multiple pre-abortion appointments that put an undue burden on women in poverty or in areas without public transportation, or requiring doctors to carry (unnecessary due to it being a low-risk outpatient procedure) admitting privileges to a hospital; the hospitals then deny those privileges, resulting in no abortion in the state. There are two issues that aren’t being seriously discussed: 1) that making it illegal isn’t how you reduce abortion, providing education, access to birth control, and reducing the wealth gap are, and 2) two-thirds of Americans support Roe v. Wade.
  • Affordable Care Act. Speaking of Mitt Romney, many conservatives seek to eliminate Obamacare. They object to it on several grounds: 1) libertarians object to a mandate to purchase health insurance, particularly one that includes a fine for non-compliance, 2) the ACA isn’t that affordable and didn’t mandate that the costs be kept to reasonable levels (fair point), 3) healthcare providers object to the ACA law that prevents them from refusing to cover pre-existing conditions which raises their costs rather than allowing those people to die or go bankrupt from medical bills[3], 4) conservatives object to government involvement in healthcare as they prefer private companies and “free” market; they don’t believe the government runs things as well as corporations[4], 5) some companies object to providing birth control coverage to employees and dislike that it is required by the ACA (although they got around that in a 2020 ruling). 68% of Americans oppose stripping away protections for pre-existing conditions, but Trump has vowed to do it.
  • Deregulation. In general, conservatives favor de-regulation that will encourage corporations to do more business in the US rather than in other countries with fewer regulations. This often includes things like labor laws that favor companies over employees, legislation against pollutants, governmental oversight of industries (e.g. FCC, FTC, OSHA, EPA, etc.) that restricts what companies are allowed to do in their industries. As a side gig to this trend, religious Republicans often oppose public education as well and have made it a priority to gut funding for public schools and divert this money to private or religious education.
  • Discrimination (aka “Religious Freedom”). Socially progressive policies regarding LGBT rights, gender equality, and racial equality often turn up at the Supreme Court. Proponents of religious freedom seek to expand who qualifies for ministerial exception or to be exempt from the anti-discrimination laws that have passed in the US that prevent employers and service providers from discriminating against customers and employees on the basis of sex or for other reasons that are protected by law. These laws exist to allow all citizens equal access to services and goods, employment, and freedom to enjoy life, liberty and the pursuit of happiness. The current version of “religious freedom” wants to expand the right of individuals to follow the dictates of their own conscience to corporations they own. Some seek to make a very broad allowance for business owners to claim a religious exemption. Churches have always had this right to ministerial exception (as well as tax exemption, which frankly gives Churches preferential treatment).

Since Trump won the 2016 election while getting 3 million fewer popular votes than opponent Hillary Clinton, there has been a lot of discussion about the growing concern of a religious minority (Evangelicals chiefly, but their political bedfellows: Catholics and Mormons) controlling policy in contradiction to what the majority of American citizens want. This is a risk inherent in the electoral college (which is how Trump won), in the Senate (which gives equal representation to Wyoming and California), and in the judicial branch (which appoints justices for life).

As I looked into this, I found out a few things that were surprising to me. The first was that there is no requirement that you have to have a legal background to be appointed to SCOTUS. But the really alarming thing that I discovered is that 6 of our current 9 justices are Catholic [5]. That’s highly unusual given that we’ve only ever had one Catholic President of the US and Catholics comprise about 20%-22% of the US. Among the three conservative religious groups I listed, only Catholics are anti-birth control, and while Evangelicals oppose abortion, only Catholics have a clearly delineated theological objection to it based on a belief that the soul begins at conception.

I have no beef with Catholics in general, but let’s be clear: many of their dogmas are not compatible with the rights and values of Americans as a whole. While some have been concerned that Justice Kavanaugh would be loyal to Trump who appointed him, I think that’s less of an issue since appointments last a lifetime; retribution from politicians isn’t a thing. I do generally believe that justices will vote their conscience rather than “dance with the girl that brought them.”[6]

There are also some sects within Catholicism that are very conservative to the point that they reside far outside mainstream American values. For example, Trump has said Amy Coney Barrett is one of his top picks. She has said:

“A legal career is but a means to an end . . . and that end is building the Kingdom of God.”

Yikes, yikes, yikes.

She is also part of a parachurch organization that believes women are the property of their husbands and must consult with a ranking Church leader on all decision making. Until the show The Handmaid’s Tale became popular, the group actually referred to wives as handmaids. In fact, Margaret Atwood cites People of Praise as one of the groups that inspired her to write her dystopian novel back in the 1980s. This simply paints her as what she likely is: an ultraconservative with priorities that are radically different from mainstream values. As the linked article says:

“I don’t think that People of Praise has caused her (Barrett) to be as conservative as she is. I think that she’s doubtless a member of People of Praise because she already was that conservative.”

Some have blamed Ginsberg for not retiring in 2013 when Obama could replace her with a liberal justice and maintain a balanced court. I’m not so sure, though. We would have had 7 fewer years in which she was able to influence her SCOTUS peers, American culture at large, particularly the lives of women, and be involved in many different rulings. But yes, from a strategic perspective, it certainly appears to have caused irreparable harm to the balance of the courts which no longer reflect the will of the people. It’s still possible, though, that through a combination of belief in precedent, a willingness to be flexible to societal trends, and the influence of the more liberal court members that rulings will not cause huge societal shifts. The point of conservatism is to maintain status quo, not to pull so hard to the right that we end up in Gilead. Time will tell.

  • Do you find a majority Catholic SCOTUS alarming? Do you think a more conservative SCOTUS will make any of the changes the religious minority behind the GOP seeks? Which ones?
  • Do you think cramming through a nomination will impact the upcoming election for POTUS and the Senate? If so, which party do you think will benefit and why?
  • What do you think will happen if the Supreme Court becomes totally out of sync with majority opinion of the populace? Do you think that is likely to happen or not?
  • Do you think RBG should have retired in 2013?

Discuss.

[1] Although after 2016, I’m not going to count my chickens.

[2] I’m not saying he’s not spineless. Backbone isn’t exactly his brand, although I don’t think he’s terrible, just not consistently principled. I just think he wants a conservative court because he doesn’t care too much about the rights of women or LGBT, but he favors deregulation for businesses.

[3] They can burn in hell and probably will.

[4] When my Church friend hysterically decried “government death panels” that would decide who lived and died, I had to remind her that I was literally denied coverage by a private company for life-saving brain surgery, and that we’ve already been living under “death panels” that deny coverage for pre-existing conditions our whole lives. Pull your heads out, people!

[5] Gorsuch was raised Roman Catholic, but has also identified as Episcopalian at times.

[6] e.g. Trump in this case.

**Post title is an obvious reference to Opus Dei, the secretive Catholic organization described, probably inaccurately, in Dan Brown’s book The Davinci Code. I had heard that Clarence Thomas is in Opus Dei, but this article claims Alito, Scalia and possibly Roberts also have Opus Dei ties.