Undoubtedly, the November election will have consequences for our nation far beyond the end of the next president’s term of office. Perhaps the most significant will be the next president’s appointment of new Supreme Court Justices to fill as many as four or five possible vacancies, as well as the appointment of numerous federal judges. Some are saying that this is “the most important issue in this election.”

Most of us can think of a number of landmark Supreme Court decisions that were decided by only one justice. All the following were 5-4 decisions: Obergefell v. Hodges (2015), making same-sex marriage legal across the 50 states; Lawrence v. Texas (2003), striking down state laws prohibiting sodomy between consenting adults; Roe v. Wade (1973), giving women a constitutional right to abortion. We are now living with the consequences of these decisions.

So, as we pray for the upcoming election and consider our own votes, we should certainly keep in mind the consequences of our choices in light of the impact they will have on the future make-up of the Supreme Court.

There are two types of judges now sitting on the Supreme and federal courts—and whoever is elected president will have the chance to nominate judges that will bolster the majority of either one type or the other. The question is which will it be?

The first type of judge seeks to follow the law as enacted by the people’s representatives in Congress and the state legislatures. This type of judge views the Constitution as the bedrock foundation for insuring “domestic tranquility” and providing for “the common defense” for a society that upholds the rule of law and seeks to foster the prosperity and well-being of all of its citizens—not just a particular class or group. This kind of judge seeks to uphold the original intent of the framers of the Constitution to provide the basis for the formation of “a more perfect union” and the means by which the “blessings of liberty” would be secured both to their own generation and their posterity. Judges of this type would agree with the following description of the intent of the Founders:

America’s Founders sought to define a national good that transcended local interests and prejudices. The national good included the common benefits of self-defense and prosperity that all Americans would realize by participating in a large, commercial nation able to hold its own in an often hostile world. But it was only with the constitutional rule of law that the higher purpose, or true national interest, of America could be realized. That purpose was to demonstrate to all mankind the feasibility of self-government and suitability of justice as the proper and sustainable ground for relations among nations and peoples.[1]

Sometimes judges in this camp are referred to as “originalists,” or “constitutionalists,” indicating their preference for seeking in their adjudication the “original intent” or “original general meaning” of the Constitution. Both Clarence Thomas and the late Antonin Scalia would be considered “originalists” and although there were some differences between them, as originalists they both believed that interpretation of the Constitution must begin with the text itself and consider both the evident meaning of the words and the meaning according to the lexicon of the times, as well as the meaning in the context of other sections of the Constitution. Additionally, originalists often consider the meaning of words in the context of the political philosophy shared by the Founding generation, or the historical, religious, and philosophical authority put forward by the Framers. Some even look at commentary in the ratification debates.[2]

In championing the originalist perspective David F. Forte, Senior Editor of The Heritage Guide to the Constitution, argues, “Originalism does not remove controversy, or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law. Without that, we are destined, as Aristotle warned long ago, to fall into the 'rule of men.'" In other words, if judges can simply interpret the Constitution according to the fashions of the day, their own personal preferences, or some other made-up standard other than the original meaning, then the document becomes meaningless, and is incapable of truly protecting our rights. [3]

Forte’s warning that unless we submit to the Rule of Law, we will fall into the “rule of men” underscores the importance of the next appointments to the Supreme Court. For if we do not get more originalists or constitutionalists on the court we will have the other type of judge, which, as Senator Orrin Hatch, president pro tempore of the Senate, has said, “seeks to control the law by making the words in statutes and the Constitution mean what the judge wants them to mean.”

Former Michigan Solicitor General, John Bursch, who argued on behalf of the states of Michigan, Tennessee, and Kentucky in defense of their laws limiting marriage to one man and one woman says that the now (in)famous Supreme Court decision in Obergefell v. Hodges shows the differences between the originalist and non-originalist view of the U.S. Constitution. “It’s really a microcosm of the legal debate about how we interpret the Constitution.”

In contrast to the originalist view, the other view sees the meaning of the Constitution as “evolving with changes in society and culture.” As Bradley C. S. Watson points out in Living Constitution, Dying Faith: Progressivism and the New Science of Jurisprudence, the notion of an “evolving Constitution” is a central tenet of the non-originalist view of the constitution. Watson shows that the ideas of social Darwinism and pragmatism in the 19^th century morphed into a powerful intellectual progressivism in the 20^th that now favors “an organic, evolutionary model of the Constitution and regime that, today, is clearly evident in constitutional jurisprudence.”

Nowhere is this view of the Constitution more evident than in the area of “civil rights,” says Watson and it undergirds the majority decisions in cases such as Planned Parenthood v. Casey (1992) and Lawrence v. Texas (2003). In the former, the Court asserted an individual right to be “free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” It also claimed that such “intimate and personal choices” are “central to personal dignity and autonomy.” In its decision in the latter case, the Court asserted the “emerging recognition” of new rights that should be protected by the court. Writing for the majority Justice Anthony Kennedy claimed, “[W]e think that our laws and traditions in the past half-century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matter pertaining to sex.”   

In the majority decision in Obergefell v. Hodges, this notion of an “emerging awareness” and evolving understanding of the Constitution shows up again. As Justice Scalia scathingly wrote in his dissent,

The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since.

In his dissent, Chief Justice John Roberts said that the majority’s answer to the question of whether the Constitution required states to allow same-sex marriage was “based not on neutral principles of constitutional law, but on its own ‘understanding of what freedom is and must become.’” He firmly stated: “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”

It is clear that the appointment by the next president of more judges who follow the type of thinking Justices Breyer, Ginsberg, Kagan, Kennedy and Sotomayor evidenced in Obergefell v. Hodges would continue to impose more Supreme Court tyranny on the citizens of our nation. We will then in truth no longer be a nation governed by the Rule of Law. We will indeed be under the rule of men; i.e., nine, black-robed tyrants.