When it comes to presidential elections, there are some people that are oblivious how important it is to elect the right person to become President of the United States. When you cast your vote in a presidential election, you are not just voting for that one person on the ticket. Yes, you are deciding on who will be the face representing the United States to the rest of the world. But you’re also voting on what political party will drive policy for the next four years and that policy does not just effect the executive and legislative branches of our 3-branch government, but you’re also voting for a person and party that will decide on which justices to put in lower courts and quite possibly, if the timing is right, nominate justices to the Supreme Court of the United States.
The Supreme Court has been a victim of partisan politics in recent history. We have not forgotten when Senate Majority Leader Mitch McConnell held up President Obama’s Supreme Court nomination, Merrick Garland, only so the ability to nominate the next SCOTUS Justice could be handed over to the winner of the 2016 presidential election. The winner, as we all unfortunately know, ended up being Donald J. Trump and the justice Trump appointed to the Supreme Court was Neil Gorsuch. Besides the obvious reason of Gorsuch stealing a Supreme Court position that should have went to Merrick Garland, many were weary of his hostile record towards the LGBTQ+ community. Gorsuch also supports religious exemptions from the law which became apparent in his opinion from the 10th Circuit Court on Hobby Lobby.
Then in July 2018, Justice Anthony Kennedy announced he was retiring from the Supreme Court which gave Trump an opportunity to appoint another justice to the Supreme Court. This time he chose Brett Kavanaugh. Many of the same reasons why Gorsuch was opposed were reasons why Kavanaugh’s nomination was troubling. Lambda Legal laid out reasons as to why LGBTQ advocates opposed Kavanaugh:
- Judge Kavanaugh believes that unenumerated fundamental rights must be tethered narrowly to “tradition,” an approach that inherently favors those who historically have enjoyed power and privilege and that would erode or eliminate significant protections for LGBTQ people.
- We have serious concerns that Judge Kavanaugh would support a novel and radical approach to religious freedom, discarding the longstanding doctrinal framework that has rejected attempts to invoke religious liberty to justify violations of anti-discrimination laws.
- We are deeply concerned that Judge Kavanaugh will gut critical health care protections, which would gravely threaten the health of people living with HIV and transgender people, among other vulnerable groups.
- We are deeply concerned by Judge Kavanaugh’s extreme views about the limits of executive privilege and the proper amount of deference owed to the President; and
- We are deeply concerned that Judge Kavanaugh’s propensity for supporting the interests of the rich and powerful will harm the economic well-being of our and other economically vulnerable communities.
With Justice Ruth Bader Ginsberg now 87 years old and been through battling cancer four times, there is a danger of who wins the 2020 presidential election deciding who will replace Ginsberg. While Ginsberg has vowed to not retire until 2023, there is always the looming possibility she could pass away before that time. If Trump gets reelected, he would be the one to decide on Ginsberg’s successor.
If this happens, the new justice, along with Gorsuch and Kavanaugh, would of course have a lifetime appointment. How could this effect the LGBTQ+ community? Past cases from the Supreme Court can show some indications as to how things could go.
In United States v. Windsor, the case that struck down parts of the Defense of Marriage Act, the Supreme Court found in favor of Edith Windsor by a vote of 5-4. In Obergefell v Hodges, the case that brought full marriage equality to the United States, the justices ruled in Obergefell’s favor in a 5-4 vote.
Both cases were decided by one vote. Now, with Justice Kennedy, the swing vote in Obergefell v Hodges, gone and the possibility of Trump getting a third Supreme Court appointment, the urgency to stand behind the Democratic presumptive nominee for POTUS, Joe Biden, is critical.
Many of the naysayers are probably asking, “What does this have to do with me?”
Plenty, especially for those in the LGBTQ community. One of the justices on the Supreme Court, Clarence Thomas, has made some interesting remarks last summer. In Gamble v. United States (2019), Thomas, in a concurring statement, explained:
Our judicial duty to interpret the law requires adherence to the original meaning of the text. For that reason, we should not invoke stare decisis to uphold precedents that are demonstrably erroneous.
Thomas’ intentions are very clear in this statement. Stare decisis is a legal principle that United States courts should not overturn legal precedents without a special reason. If stare decisis were to be removed from the U.S. court system, rulings for controversial cases such as Roe v Wade and Obergefell v Hodges could be overturned with the right majority.
Another example of this is, once again, from Justice Thomas, in a concurring statement from Ramos v Louisiana (2020):
The unreasonableness of this interpretation is underscored by the Court’s struggle to find a “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not,” ibid., as well as its many incorrect decisions based on this theory, see Obergefell v. Hodges, 576 U. S. 644 (2015); Roe v. Wade, 410 U. S. 113 (1973); Dred Scott v. Sandford, 19 How. 393 (1857).
Thomas firmly believes cases like Obergefell v Hodges (2015), Roe v Wade (1973), and Dred Scott v Sanford (1857) were ruled incorrectly. With the right majority, Thomas could influence these and other cases to be overturned.
If Donald Trump wins in November, there is a great possibility he will get the chance to fill another seat in the Supreme Court. As of right now there is barely a conservative majority, and if anything were to happen to Ginsberg, although we hope she is going to be around for a while, Trump would have a justice ready to be confirmed by the Senate. Do not think for a minute that he has not already started looking.
The rights we in the LGBTQ+ community have are not much, but we fought a hard fight to get them. One election, this one in November, could change that if we are complacent and let Trump win. Many will argue that Biden is not liberal enough or will refuse to support him because the nominee should have been one of the other candidates. I, along with many others, are begging you to give Biden a chance. It is entirely possible that with people like Elizabeth Warren, Bernie Sanders, and many others that are more liberal in the legislative branch will help to influence the Biden administration. Plus, Biden has to pick who he wants to be his Vice President. That decision alone could make all the difference.
Writer’s Note: This is the opinion of one contributing writer and may not reflect the views of Instinct Magazine itself or fellow contributors.