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How Are Trump's Top Supreme Court Candidates Expected to Vote on America's Hottest Justice Issues?

Pacific Standard spoke with Supreme Court watchers about how President Trump's nominees might rule on cases about abortion, gay marriage, and voting rights.
A flag flies outside the U.S. Supreme Court on June 26th, 2017.

A flag flies outside the U.S. Supreme Court on June 26th, 2017.

President Donald Trump told reporters on Thursday that he'll announce his Supreme Court nominee on Monday. Several candidates are in contention, but he reportedly has three favorites: judges Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge. How might these folks rule on issues that are important to many Americans' daily lives?

To find out, Pacific Standard consulted Supreme Court watchers with varying political allegiances regarding how they expect the frontrunners to rule on issues we've covered extensively: abortion, gay marriage, and voting rights.

Mathew Staver, Founder of Liberty Counsel

Liberty Counsel is a legal non-profit that opposes abortion and same-sex marriage.

How do you expect Coney Barrett, Kavanaugh, and Kethledge to rule on abortion cases?

I think they're all really similar in their approach. All three have a history of commitment to textualism, to the original text of the Constitution or the text that they're interpreting. I think anybody who has committed to originalism, when they come to an issue such as abortion or same-sex marriage, will conclude that it is not supported in the Constitution.

The Constitution doesn't explicitly talk about abortion or gay marriage. So what does that mean for somebody who's a textualist?

If there's nothing there, then it's not a federal issue. There are certain things that are left to the state constitutions and the state statutes.

What about voting rights? How do you expect the three frontrunners to rule there?

Those are difficult cases. Just because you're committed to the text doesn't mean you look at a text and you realize, "This is exactly what the legislature meant." You have to look at the Constitution. Does the Constitution allow it? There's the constitutional requirement that you have no dilution of your vote, or you have equal opportunity to vote.

I would think that, on voting rights, it's really going to depend on the specific, factual situation because not all redistricting cases [for example] are going to be constitutional, and not all of them are going to be unconstitutional.

Is there one candidate you'd especially like to see get the seat?

I think they're all good, but my preference is Amy Barrett. She's been highly acclaimed as a law school professor and constitutional scholar. She was also confirmed, eight months ago, to the Court of Appeals, so she's familiar with the process as it exists now.

The Alliance for Justice is a group that advocates for a progressive judiciary.

How do you expect Barrett, Kavanaugh, and Kethledge to rule on abortion cases?

The president of the United States has made clear that every person on this list meets his litmus test, that that individual will "automatically overturn" Roe v. Wade. I, for one, take the president at his word.

What about voting rights?

First of all, you've seen conservative justices on the Supreme Court, this term and in past terms, make clear their contempt for our democracy and for voting rights. You saw, this term, the Supreme Court make it easier for states to purge legitimate voters off the voting rolls. And you've seen it in the type of nominees on this list. For example, Raymond Kethledge ruled in favor of the Ohio Republican Party when it sued the state to block a directive that ensured that typos and clerical errors in government databases would not disenfranchise voters. If Kethledge's holding had been upheld, it would have prevented as many as 200,000 otherwise eligible voters from casting their ballot. Fortunately, the Supreme Court promptly vacated the decision.

Are there any important differences between the candidates?

I don't think so.

What would you like to see happen with the open Supreme Court seat?

We're hopeful that when the American people and senators of both parties get to know these individuals, that these folks will be rejected. There's another route: Instead of pushing through somebody on a party line or near-party line vote, sit down with Senator [Chuck] Schumer (D-New York) and the Democrats and come up with a consensus nominee that all Americans can get behind.

Lambda Legal has been involved in all of the major lesbian, gay, bisexual, and transgender rights cases that have come before the Supreme Court.

How do you expect Barrett to rule on gay marriage?

Barrett's record, in many ways, is the most explicit, in terms of her anti-LGBT views. She is a co-author of a letter, shortly after the Obergefell decision [which made same-sex marriage a federal right], that very clearly wants to dispute the notion that a marriage could, in fact, involve a same-sex couple.

[Editor's note: When pressed by lawmakers on her religious beliefs regarding abortion and gay marriage, Barrett has said she will uphold the law—but has also espoused a "flexible" approach to legal precedent.]

How about Kavanaugh?

I have not found a decision in which Judge Kavanaugh had a reason to speak specifically in a case involving LGBT people.

But the fact that Judge Kavanaugh was criticizing the court for creating "new rights" for a teenager in federal custody to be able to access an abortion, by saying it was the right of an immigrant to have an abortion, as opposed to the right to access an abortion—that is the kind of move that people often try to make when they say: "Same-sex couples aren't just trying to access marriage. They're trying to have some new, special version of marriage." So that is an example of something that causes us concern.

And Kethledge?

Kethledge does not have a deep record on LGBT issues.

Is there anyone among Trump's candidates that Lambda Legal would support for the Supreme Court?

I don't think that there's anybody on the shortlist that we would be comfortable supporting. That's why we are joining the calls of many organizations to start over and to actually come up with nominees that are the product of meaningful consultation and not simply outsourced to the most extreme elements of his political base.