The Presidency and the Supreme Court

Fourth Quarter 2000

by Stephen V. Monsma

On June 28 of this year the Supreme Court handed down a decision that helps symbolize some of what is at stake in this fall's election. The case was Mitchell v. Helms and in it the Court ruled that a federal program funneling money to local school districts for computer hardware and software, library books, and other educational material and equipment was constitutional, even though religiously based private schools were included in the program.

Of even more interest than the substance of the decision, however, was the sharply contrasting opinions it generated. During the 1970s and 1980s a strict separationist, no-aid-to-religion doctrine was in the ascendancy on the Supreme Court. This doc-trine often had the effect of discriminating against religion, as when religiously based schools or social service agencies were unable to receive public funds or services that similar secular organizations were receiving. But the good news is that that doctrine is increasingly giving way to an approach termed equal treatment or neutrality. And here is where the full import of the Mitchell decision comes in and why it symbolizes the importance of this fall's election.

In the Mitchell decision the Court was very closely divided. Four justices argued that the program which included aid to religiously based schools should be upheld on the basis of equal treatment or neutrality grounds. Three justices argued against the constitutionality of the pro-gram on old, strict-separationist, no-aid- to-religion grounds. And two justices were in the center, arguing that the program should be upheld, but felt evenhandedness or neutrality was not sufficient grounds to hold it constitutional.

What does all this have to do with this fall's election? Just this: Due to the advanced age and the health problems being experienced by several of the Supreme Court justices, it is likely that the president we elect this November will be able to appoint as many as three or four new justices to the Supreme Court. Given the crucial juncture to which church-state law has now come—a juncture well illustrated by the Mitchell v. Helms decision of this June—the presidential election may well determine the direction of church-state decisions for the next twenty years.

Church-state relations are not the only crucial issue with which the Supreme Court is dealing. Within the foreseeable future it will also be dealing with issues of abortion, physician-assisted suicide, and other questions of medical ethics, not to mention capital punishment, gay rights, the rights of the poor and weak in our society, and the rights both of those accused of crimes and of victims of crime. If one were to make a list of the cutting-edge issues that are largely unsettled in our society today and that are likely to be settled one way or another in the next 10 years, I suspect a majority of those issues will primarily be settled by the Supreme Court, not by Congress or the other policy-making branches of government.

All this is to say that any Christian voter concerned about a greater measure of public justice in our land needs to ask what sort of persons the two presidential candidates are likely to appoint to the Supreme Court. Here the web sites of the two candidates can be helpful. Al Gore has all but said he would appoint justices who will hold vouchers unconstitutional and uphold abortion rights. His web site discusses abortion in these terms: "Al Gore will fight to guarantee women the right to choose and make abortion safe, legal, and rare . . ." Similarly, in a July 5 speech to the American Federation of Teachers, Gore stated that he was strongly opposed to vouchers, and immediately went on to point out that the next president is likely to make several Supreme Court appointments.

George W. Bush's education proposal includes vouchers as one way to deal with failing schools. In Texas he has taken the lead in promoting the use of faith-based agencies to deliver public social services. He has also made clear he opposes the Supreme Court's ruling that Nebraska's ban on partial birth abortion is unconstitutional. He has clearly stated his opposition to both abortion and physician-assisted suicide.

From this, one can conclude the likelihood that the Supreme Court appointments made by the two candidates would differ significantly.

In writing all this I do not intend to say that justice-oriented citizens should vote for one candidate or the other for these reasons alone. There are many other issues and perspectives to be weighed. But I would insist that one perspective a justice-oriented Christian needs to weigh in his or her mind this year is the type of Supreme Court justices the two candidates are likely to appoint.

[Stephen V. Monsma, a former Michigan State senator, is Professor of Political Science at Pepperdine University and the author of Positive Neutrality: Letting Religious Freedom Ring and When Sacred and Secular Mix.]