Every summer I get reacquainted with the sound of bullhorns. That’s because every June I find myself on the steps of the Supreme Court of the United States, waiting with crowds of other people for a high-stakes decision. The crowds there are mostly peaceable, but there are always the fringes on both sides screaming into microphones at one another. While waiting for the Obergefell decision on marriage, I witnessed Westboro Baptist Church types screaming that they would delight in the others going to hell, while men dressed in drag as nuns shouted obscenities right back.
Regardless of the year, every June brings the certainty of large and contentious crowds. And that’s because, even for people who give no thought to legal philosophy, the Supreme Court is at the center of virtually all our national fissures.
Now with the death of Justice Ruth Bader Ginsburg, we are on the precipice of another fiery dispute between the competing halves of the country about the future of the Court, maybe even fierier than the debate over Justice Kavanaugh two very long years ago.
As evangelical Christians, what should we hope is the end result of these transitions? Ultimately, we should hope for a future where the Supreme Court plays a less central (and less divisive) role in our public life. But the more immediate answer depends on our having a realistic view of what can change and what will not change under the current circumstances.
What will not change—barring some unimaginable circumstance—is the question of whether a justice will be confirmed. As with the death of Justice Scalia, this vacancy comes in a presidential election year, this time even closer to the election. Americans debate whether President Trump should wait until after the election to nominate a justice and whether the Republican Senate should wait until a new Senate is elected to vote on the nomination.
Those arguments are important—and underlying them are deeper questions about the current state of our institutional norms—but they will change nothing. The hearings will happen, and a vote will be held. And there’s no chance that they will not be divisive. The confirmation process will almost inevitably bring forth something we have seen a number of times in the past—namely, a caricaturing of the nominee on the basis of her religious views and practices.
In the years to come, what might change through the Supreme Court? Some decisions of the past may be overturned, and we should hope that they are. Evangelicals and others are right to see Roe v. Wade and Planned Parenthood v. Casey as bad decisions, rooted in incoherent and contradictory legal assertions that restrict the state from even the most basic measures to curb violence against unborn children. The Smith decision—written by Justice Scalia—should be replaced with a decision that fully respects the First Amendment principles of religious free exercise. We should also hope for a Court that rejects on constitutional grounds any cruelty toward immigrant children who are brought into this country by their parents.
That said, even in the best of scenarios, the Supreme Court will not usher in a utopia for one “side” or a dystopia for the other. Even if Roe is gone this year—and I hope that it is—that will not mean a pro-life America in which unborn children are, in the words of George W. Bush, “welcomed in life and protected in law.”
Yes, it would mean a necessary impediment is gone and a tragic stain is removed from the country’s legal status quo. But in some ways, the day after Roe will be the beginning of the pro-life movement, not the end of it. A repealed Roe would simply return the abortion laws to the states in a culture where most Americans to some degree are supportive of legal abortion. We would need to work to change minds on human dignity and create even more parallel structures to help women and children in crisis—a task to which we as Christians are called anyway (James 1:27).
Likewise, a repeal of Smith would remove an obstacle to religious freedom, but there would still be murky conflicts between public policy and religious accommodation—just as there are on freedom of speech and every other constitutional guarantee.
No matter what, the next few years of the Court will be contentious, as they have been for the past few. People will scream “traitor!” when one of their “side’s” justices decides a case differently than the outcome they would want—just as they do now. That is not avoidable, given the divisions already present in American life—and the decisions the Court has already made. After all of that, though, what we should hope for is a Supreme Court that is less central to all of our lives—where every June does not seem like an episode of a spy drama in which a character is racing to defuse or to ignite a city-leveling bomb.
By that, I don’t mean the Court is “legislating from the bench” (although sometimes, of course, it is). The Court exists because we (rightly) have a constitutional system that is not majoritarian when it comes to our basic rights. For example, the Supreme Court was correct—and heroically correct—in the Brown v. Board of Education decision. Jim Crow was a violation of constitutional guarantees, no matter what the “majority” of white southerners may have thought at the time about segregation.
Similarly, we should not depend on public opinion to determine whether Amish pacifists should be drafted into combat. The Court can independently state that those mandates violate the free exercise of religion (even if almost everyone in the country at the time thinks Anabaptist theology is crazy or unpatriotic). And I would argue that unborn children and elderly patients should be recognized as persons bearing inalienable rights, no matter how popular those rights are with registered voters.
The reason the Court has become so central to our public life is not primarily because of judicial activism (although, again, that is a reality) but because American life is so frayed.
Biblically defined, judging is a crucial aspect of governing. Solomon, for instance, asks for wisdom to be able to discern good and evil so that he can judge disputes among the people of Israel (1 Kings 3:9). God grants him that wisdom, which is illustrated in the classic case of the two prostitutes who appeal to him to decide whose baby is the living one and whose was killed in the night. Solomon’s discernment is on display—such that “cutting the baby in two” has now become a cliché metaphor—but the situation itself is a sign that something has gone wrong. A baby is dead; a relationship is fracturing.
In other words, when we need judges, it’s a sign that something is awry.
These aspects of judgment are necessary. Disputes will happen in a fallen world. But we should hope that the fabric of our country strengthens to the point where we can find other ways of mediating our different viewpoints toward justice. We should hope for a country where high-stakes 5-4 or 6-3 decisions are rarer than they are now—not because important issues aren’t litigated but because the country sees human dignity and public justice in ways that correspond to what our consciences already tell us.
We can pray for the future Court to make wise decisions, and we know that, at least for the next few years, those decisions will be necessarily controversial. But on the other side of that, we can hope and pray for future Junes to come and go without most of us even noticing what the Supreme Court has said. We can hope for a day when we walk past the Court and ask, “What did they decide today?” without hearing the bullhorns from around the bend. That would mean that the country is at least moving toward liberty and justice for all.
Russell Moore is president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention.
Speaking Out is Christianity Today’s guest opinion column and (unlike an editorial) does not necessarily represent the opinion of the publication.
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