The Supreme Court—Will the Balance of Justice Tip?

In the recent presidential election in the United States, many Christian voters were reluctant to vote for Republican candidate Donald Trump. Although the values of Christian voters on issues such as abortion and homosexual rights tend to align more with those of Republican candidates, many had concerns about Trump’s personal life, his incendiary comments, and his past positions on values issues. Despite these reservations, many conservative voters cast their ballots for Trump, not necessarily because of support for him personally, but because of the appointments he had indicated he will make to the Supreme Court as well as to other appointed positions.

Appointments to the Supreme Court are lifelong and, therefore, the effects of a president’s judicial appointments are felt by the country for years to come. Some presidential administrations come and go without the President ever appointing a single Justice to the high court. However, the role of the President in making appointments to the Supreme Court was especially highlighted in the last election cycle because of the vacancy left by the sudden death of Justice Antonin Scalia. We will examine the current situation in the Supreme Court, its effect on matters of church and state jurisprudence, and the possibilities for the future of the Court.

The Supreme Court has been divided for many years, with many decisions on controversial issues being decided by a 5 to 4 majority vote. The Court has had four Justices who usually took a more conservative position, including Justices Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. The Court also has four Justices who usually come down on the liberal side of issues, including Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer. The ninth Justice, and often the deciding vote on the court, is Justice Anthony Kennedy, who sometimes votes with the conservative Justices, and other times with the liberal Justices. The balance of power on the Court has been very delicate.

Despite the ideological divide on the Court, under Chief Justice Roberts, and Chief Justice William Rehnquist before him, the Court has often taken positions which preserve religious freedoms. From allowing religious groups to use sacramental tea containing controlled substances,1 to allowing religious groups to decide their own employment issues independent of federal employment discrimination laws,2 the Court has tended to give churches, religious institutions, and religious individuals substantial freedom to exercise their religion. In some cases, the Court has protected religious freedom at the expense of the rights that individuals have under other laws, such as the protection individuals normally have from discrimination under federal employment law.

Some of the more recent cases the Court has decided have involved questions of conscience for businesses and institutions operated by Christians. In the case of Burwell v. Hobby Lobby, the issue was whether a corporation could refuse to provide employees with contraceptives required by the Affordable Care Act due to religious objections to those contraceptives.3 In a landmark decision, the divided court held that a corporation could exercise religious freedom and avoid the requirement on religious grounds.

The federal government’s implementation of vast new programs such as the Affordable Care Act are sure to increase the number of cases in which the mandates of government programs collide with the religious beliefs of Christians. At the same time, the Court’s recent ruling on homosexual marriage in the Obergefell case guarantees that those exercising religious freedoms will also come into increased conflict with claims of discrimination by homosexuals. Over the next several years, the Supreme Court’s decisions will have an enormous impact as the law on these issues is developed.

The tenuous balance on the court was upset in February of 2016, when Justice Scalia passed away suddenly. Scalia was a textualist and construed the U.S. Constitution and other laws very strictly according to the original intent. Scalia was also an intellectual force to be reckoned with, and often made well-reasoned legal arguments that swayed his fellow Justices towards his conservative position.

After Scalia’s death, even if Justice Anthony Kennedy sides with the conservative Justices, the court has been deadlocked with four Justices on each side of many issues. If another liberal leaning Justice were appointed to fill the vacancy created by Scalia’s death, the Court would have an established 5-4 liberal majority. President Obama nominated a replacement for Justice Scalia, but such nominations are subject to Senate confirmation, and Senate Republicans refused to hold confirmation hearings. With no confirmation, the choice for a replacement would fall to the winner of the November election.

While operating with only eight Justices, the Court has not continued to guard religious liberties in the same manner. For instance, the Court declined to hear an appeal in a case involving a family-owned pharmacy in Washington in a right-of-conscience case. The state of Washington issued regulations requiring pharmacies to dispense birth control that the family considered abortive. The Stormans family challenged the regulations as a violation of their religious liberty and right of conscience. They offered to refer customers who wanted such medications to other pharmacies, but did not want to distribute the drugs themselves. The Court declined to hear the case, which meant that the ruling of the lower court upholding the regulations was left standing as the final ruling in the case.4

The three remaining conservative Justices dissented from the decision to deny the pharmacy’s appeal. Conservative Justice Samuel Alito commented on the implications of the Court’s refusal to hear the appeal, calling it “an ominous sign.” Alito wrote, “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.” The Court’s act in declining to hear the Stormans’ appeal means that Christians who are pharmacists in Washington are left with the dilemma of either violating their consciences or finding other employment.

As a side note, the Supreme Court’s declining to hear the Stormans’ appeal may not have made a difference. Given the vacancy on the Court, even if Justice Anthony Kennedy sided with the conservative Justices, the decision could be split four to four if the Justices divided along the usual lines. In cases of an even split, the Court issues what is called a per curiam decision, which does not have precedential value and therefore does not settle the law on an issue. If Justice Kennedy sided with the liberal wing of the Court, the decision could have been five to three against the Stormans.

President Trump has indicated that he will nominate a Justice to fill the vacancy left by Scalia from a list that he released while still a candidate. Many are hopeful that the individuals listed will be on the conservative side of the Court if confirmed as the next Supreme Court Justice. This would move the Court more towards the balance that existed when Justice Scalia was on the bench.

Additionally, the age of a number of the Justices would suggest that whoever holds the office of President over the next few years could make additional nominations. Two of the Justices from the Court’s liberal wing, Justice Ginsburg and Justice Breyer, are 83 and 78 years old, respectively. Justice Kennedy is 80 years old.

Our comfort is knowing that whatever direction is taken by the Supreme Court and its jurisprudence, it is in the Lord’s hand. His will determines the decisions that will be made, whether He chooses the means of the Court to protect the religious freedom of His people, or to use it so that the church is oppressed. We trust in God rather than man. History has shown that Justices appointed by conservative-leaning Presidents do not always prove to be conservative Justices. Justice Anthony Kennedy was appointed by Ronald Reagan, but often sides with the liberal Justices. Retired Justice Sandra Day O’Connor was also appointed by Reagan, but was not consistently conservative. Retired Justice David Souter was appointed by President George. H. W. Bush, but sided with the liberal Justices. We must wait patiently on the Lord, to see whether He will use the means of the Supreme Court to allow His church religious freedoms for a time yet.


1 Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 126 S. Ct. 1211; 546 U.S. 418 (2006).

2 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694; 565 U.S. (2012).

3 Burwell v. Hobby Lobby, 134 S. Ct. 2751; 573 U.S. (2014).

4 Stormans v. Wiesman, 136 S.Ct. 2433 (2016).