SCOTUS gets it right on COVID restrictions for churches

 The Supreme Court decision invalidating portions of an Executive Order by New York Governor Andrew Cuomo earlier this week was a triumph for religious liberty. It is also a good example of why fears that pandemic restrictions will lead to broader tyranny are unfounded.

The ruling in the case of Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo came the day before Thanksgiving and was a response to two requests for relief by the Roman Catholic Diocese and Agudath Israel of America. At issue was Gov. Cuomo’s Executive Order that established “red” and “orange” zones where attendance at religious services was limited to no more than 10 and 25 people respectively.

One problem with Cuomo’s Order was that businesses deemed “essential” had no limit on crowd sizes. Additionally, the definition of “essential” included “acupuncture facilities, campgrounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities.”

Further, both religious groups had complied with public health guidelines as well as implementing additional preventive measures. Both groups noted that they had conducted services at 25 to 33 percent capacity for months and had no outbreaks.

In a 5-4 decision, the majority concurred with the unsigned order that ruled in favor of the religious groups. Justices Neal Gorsuch, Brett Kavanaugh, and Chief Justice John Roberts wrote separate concurring opinions while Justices Breyer, Sotomayor, and Kagan joined in a dissent.

The opinion is brief and strikes a balanced tone, first establishing the rules on which the relief was ordered. The ruling states that ” because the challenged restrictions are not ‘neutral’ and of ‘general applicability,’ they must satisfy ‘strict scrutiny,’ and this means that they must be ‘narrowly tailored’ to serve a ‘compelling’ state interest.”

The Court agreed that “stemming the spread of COVID–19 is unquestionably a compelling interest,” but noted that the Executive Order was “far more restrictive than any COVID–related regulations that have previously come before the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.”

The Court further noted that New York admitted that department stores, which were not subject to the crowd-size restrictions could “literally
have hundreds of people shopping there on any given day” and that “the Governor has stated that factories and schools have contributed to the spread of COVID–19 but they are treated less harshly” than religious organizations.

Unlike many churches around the country, the Court found that the Diocese and Agudath Israel had taken more stringent safety measures than were required by the state. These precautions gave both groups an admirable safety record and helped to sway the Court that Cuomo’s Order was too restrictive.

“Not only is there no evidence that the applicants have
contributed to the spread of COVID–19 but there are many
other less restrictive rules that could be adopted to minimize the risk to those attending religious services,” the decision stated.

The majority found that Cuomo’s restrictions on churches would result in irreparable harm to the First Amendment and were not in the public interest, quoting precedent that held, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

However, the Court did not give religious groups carte blanche to claim persecution when their activities are restricted. The ruling pointed out that pandemic restrictions are not unconstitutional on their face, but rather that health and the public interest must be balanced with the Constitution.

“Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area,” the decision stated. “But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.”

So what should we, as church members and constitutionalists take from this ruling? The most important takeaway is that temporary public health restrictions in a pandemic are not unconstitutional but they must be evenhanded and defensible based on the local situation. The Court will allow emergency orders to combat the spread of the virus but it will strike down broad overreach. This is good news for those who have worried for the past eight months that Coronavirus restrictions would usher in permanent tyranny.

Second, governments cannot single out religious organizations for stricter limitations than secular businesses and groups unless the rules are narrowly tailored to serve a compelling state interest. The First Amendment offers protection for the exercise of religion, but this protection is not unlimited.

I believe that if the New York churches had been shown to be superspreaders in the community that the Court might have handed down a very different ruling. Unfortunately, many churches around the country are not able to meet the safety standards of the Brooklyn Diocese and Agudath Israel. Many religious organizations around the country have been shown to be hotspots for viral outbreaks. These churches might find that targeted restrictions on their services would be upheld by courts that look at the facts of the situation and find a compelling public interest in slowing the outbreak.

If you’re are a pastor or are on the governing body of your church, you should absolutely take the Coronavirus pandemic seriously. You should exercise caution to protect both your members and your community. If your local government places draconian restrictions on your church, you can challenge those restrictions in court and you’ll have a better chance of winning if your church has not been the source of a COVID cluster.

Originally published on The First TV

Here Are Trump’s Likely Supreme Court Nominees

 As the race to confirm a replacement for Ruth Bader Ginsburg heats up, the White House has hinted at two possible candidates and President Trump has promised to name a woman to replace the popular liberal jurist. One candidate was a finalist for Trump’s last appointment to the High Court while the second possibility is a Latina who might help Trump with Hispanic voters.

On Saturday, President Trump told reporters, “It will be a woman, a very talented, very brilliant woman. I haven’t chosen yet, but we have numerous women on the list.”

The statement, which was reminiscent of Joe Biden’s pledges to pick a woman for his running mate and to appoint a black woman to the Supreme Court, has not been criticized by Republicans, who normally oppose such demographic tests. In fact, a Republican crowd at a Trump rally in North Carolina cheered the idea of a gender-based pick.

A leading candidate for the seat is Amy Coney Barrett, a Seventh Circuit judge from New Orleans, who graduated from law school at Notre Dame. The Seventh Circuit is headquartered in Chicago and Barrett has served in her position there for just under two years after teaching at Notre Dame for two decades.

Barrett was a finalist for the appointment to fill the last opening on the Court. She is a staunch conservative and pro-life judge who once clerked for Justice Scalia. In 2018, she was widely considered to be a bigger threat to Roe v. Wade than Brett Kavanaugh.

Last year, Trump said of Barrett to Jonathan Swann of Axios, “I’m saving her for Ginsburg.”

In the other corner is Barbara Lagoa, who is currently a justice on Florida’s Supreme Court. Lagoa is a Cuban-American, born in Miami, who graduated from Columbia Law School and was appointed to Florida’s Third District Court of Appeal by Jeb Bush in 2006 and the State Supreme Court by Ron DeSantis in 2019.

There are pros and cons for either choice. Amy Coney Barrett has been more closely vetted than Lagoa, which is both a blessing and a curse. Her anti-abortion beliefs are well-known and would be a lightning rod for Democrats and pro-choice Republicans.

Barrett’s short judicial history leaves few opinions for researchers to comb through as they seek to understand her judicial philosophy. One controversial opinion that will come up a lot in the next few weeks was Barrett’s ruling in 2019 that Purdue University’s handling of a sexual assault allegation may have discriminated against the accused man.

On the other hand, Lagoa has a longer history on the bench but no experience in the federal judiciary at all. She has ruled against voting rights for felons and generally been pro-business in her decisions per the Washington Post. One of her most controversial decisions was her ruling that Gov. DeSantis’s firing of Broward County Sheriff Scott Israel for incompetence following the Parkland, Florida school shooting.

With respect to abortion, Lagoa, a Catholic, is generally considered pro-life. However, she did respond to a question from Senator Feinstein last year by writing that Roe was “binding precedent of the Supreme Court and I
would faithfully follow it as I would follow all precedent of the Supreme Court.” She also responded that Roe was “settled law.”

Florida Republicans say that picking Lagoa could win the state for Trump even though Biden has consistently led in polling of the Sunshine State. Even if Trump does pull out a win in Florida, he would still lose the election if he can’t turn things around in other battleground states such as Arizona, Michigan, Pennsylvania, and Wisconsin where polling also shows him losing to Joe Biden.

Either woman would likely be a good pick for conservatives and constitutionalists, but it remains to be seen whether the additional conservative seat on the Court would be worth the collateral damage that confirming Mr. Trump’s pick could cause. Many Democrats, still smarting over the Senate’s failure to act on Merrick Garland, would like to see President Biden make two appointments off the bat by expanding the Court to 11 justices. This would almost certainly require the elimination of the filibuster and could set of a judicial arms race in which both sides expanded the Court whenever they held the White House and the Senate.

The Supreme Court fight might also cost Republicans Senate seats that could be held otherwise. A new Reuters poll found that 62 percent of adults favored allowing the winner of the election to make the appointment. Only 23 percent disagreed, which indicates that even a large number of Republicans want to let the voters decide the fate of the seat.

Donald Trump has typically performed poorly with women voters. A recent poll from Lake Research Partners and Emerson College Polling found that women favored Biden by 11 points, fueling an 18-point gender gap. Republicans hope that the appointment of a female judge will help make up some of that deficit. The net result may be negative, however, when the effect of going against the will of the voters in filling the seat is considered.

The outcome of a confirmation vote is still in doubt at this point. Republican Senators Susan Collins (Maine) and Lisa Murkowski (Alaska) have said that the Senate should not vote on Mr. Trump’s nominee before the election. The assumption is that this means they would not support a Trump nominee at this time. With 53 Republican votes in the Senate and Vice President Mike Pence as the tie-breaker, Republicans can only afford to lose one more senator.

The confirmation battle is still in its early stages. There is much that we don’t know, including who the nominee will be. One thing is certain, however. That is that the process will be contentious no matter who President Trump picks.

Originally published on The Resurgent

Justice Ginsburg Is Back In The Hospital

Justice Ruth Bader Ginsburg is back in the hospital for a “minimally invasive non-surgical procedure” per a spokeswoman for the Supreme Court. Ginsburg, 87, is battling liver cancer but the current procedure is a “revised a bile duct stent” and is apparently not related to her cancer.

“According to her doctors, stent revisions are common occurrences and the procedure, performed using endoscopy and medical imaging guidance, was done to minimize the risk of future infection,” Kathy Arberg, the Court’s spokeswoman said in a statement reported by ABC News.

Ginsburg said in a statement on July 17 that her prognosis is good and that her most recent scan showed a reduction of the existing cancer and no new spots.

“Immunotherapy first proved unsuccessful,” Ginsburg wrote. “The chemotherapy course, however, is yielding positive results. Satisfied that my treatment course is now clear, I am providing this information.”

“I have often said I would remain a member of the Court as long as I can do the job full steam. I remain fully able to do that,” she added.

Conservatives, and particularly pro-life Christians, should pray for Ginsburg’s recovery. This is not only because wishing Ginsburg good health is the decent thing to do as a human being, but because of what effect a lame-duck vacancy on the Court would have on the country.

Depending on when the vacancy occurred, the situation would be different but most possibilities are uniformly bad. If Ginsburg’s seat opened up before the election, it would likely galvanize Democrats to get to the polls to protect the balance of the Court, the same way that Republicans did in 2016 after the death of Antonin Scalia.

If Mitch McConnell and President Trump decided to move forward a Trump nominee, the Republican Party would open itself up to charges of hypocrisy after McConnell’s rebuff of President Obama’s nomination of Merrick Garland. The left would go apoplectic and civil disturbances may well increase.

While conservatives and Republicans have typically approved of Mr. Trump’s judicial nominees, his Supreme Court picks have not been as popular with voters. Both Neil Gorsuch and Brett Kavanaugh were less popular than most nominees with Kavanaugh being particularly unpopular. Ramming through a Trump appointee would not bode well for Republican electoral chances.

Assuming that Republicans could force through a nominee, Joe Biden, the likely presidential victor, would be under intense pressure to take action. If Republicans lose both the White House and the Senate, as seems increasingly likely, there is a Democrat plan to pack the Court by adding justices. This would almost certainly require eliminating the filibuster as well.

If eliminating the filibuster for judicial nominees was the nuclear option, the court-packing plan would be the Death Star world-killer ray option. The fight would be intense and partisan divisions would be further cemented. Any hope for renewed civility and unity would disappear amid tribal rancor the likes of which we cannot begin to imagine.

For the good of the country, we should hope that Justice Ginsburg continues her recovery. A Supreme Court nomination fight needs to be delayed until America is better equipped to handle it.

Originally published on The Resurgent

Today Was A Good Day For Religious Liberty At The Supreme Court

In a long-awaited decision, the Supreme Court has ruled in favor of the Little Sisters of the Poor in a case that dates back to the Obama Administration’s controversial contraception mandate. The Court found that the Administrative Procedures Act did not conflict the with the Court’s previous ruling that established two interim rules for answering religious exemption questions.

The first rule held that church exemptions were expanded to include an employer who “objects . . . based on its sincerely held religious beliefs,” “to its establishing, maintaining, providing, offering, or arranging [for] overage or payments for some or all contraceptive services.” The second rule established a “similar ‘moral exemption’ for employers with sincerely held moral objections to providing some or all forms of contraceptive coverage.”

The 7-2 decision was authored by Clarence Thomas and joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh. Justice Kagan authored a concurring opinion which, was joined by Justice Breyer. Justice Ginsburg’s dissent was joined by Sotomayor.

The ruling is a good one and was not unexpected. The Religious Freedom Restoration Act requires the government to use the least intrusive means when religious freedom must be limited for the public good. It is difficult to argue that the needs of the nation require that Catholic nuns, who take a vow of chastity, must buy health insurance with birth control, which is against their longstanding religious beliefs.

It turned out to be a really good day for religious liberty at the Supreme Court because the Little Sisters ruling was followed by another favorable decision in Our Lady of Guadalupe School. This case asked whether religious schools could terminate employees using the “ministerial exception” even if they did not hold a ministerial job title.

The Court ruled that religious school teachers are ministers even if they do not hold a job title that includes the word “minister.” The ruling, written by Justice Alito, noted that teachers at religious schools “performed vital religious duties, such as educating their students in the Catholic faith and guiding their students to live their lives in accordance with that faith” and that the “schools expressly saw them as playing a vital role in carrying out the church’s mission.”

Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh joined Alito in another 7-2 decision. Justices Thomas filed concurrences, which was joined by Justice Gorsuch. Justice Sotomayor was joined in her dissent by Justice Ginsburg.

The Guadalupe ruling was also a good one. It is axiomatic that religious institutions should be able to exercise control over who they employ in positions of leadership and instruction.

Other rulings are still to come. These include the eagerly-awaited decisions on President Trump’s tax returns.

Originally published on The Resurgent

SCOTUS Rules Trump Cannot End DACA

The Supreme Court has ruled that President Trump cannot unilaterally end the Deferred Action for Childhood Arrivals program begun by President Obama. President Trump had sought to use his executive authority to end the program which exercised “prosecutorial discretion” in delaying deportation of illegal immigrants who arrived as children and met certain other requirements. An obvious question is how the Supreme Court could overrule an executive decision to end a program that had its origins in another executive decision.

The answer lies in the Administrative Procedures Act. This is the same federal law that tripped up the Trump Administration’s attempt to add a citizenship question to the census last year. Readers may recall that the requires courts to strike down government actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Today’s decision was written by Chief Justice Roberts and joined in full by Justices Ginsburg, Breyer, and Kagan. Justice Sotomayor joined in all but Part IV of the opinion, which yielded a 5-4 decision against the president.

The ruling stemmed from the fact that Elaine Duke, former United States Deputy Secretary of Homeland Security at the time of Trump’s decision to end DACA, and former Secretary of Homeland Security Kirstjen Nielson provided inconsistent and incomplete explanations of why the DACA rule was being rescinded.

Writing for the Court, Roberts explained, “Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy.”

“In failing to consider the option to retain deferred action, Duke ‘failed to supply the requisite ‘reasoned analysis,’”Roberts further explains.

The Court also found that Duke failed to determine whether there was “‘legitimate reliance’ on the DACA Memorandum.”

“DHS has flexibility in addressing any reliance interests and could have considered various accommodations,” Roberts explained for the Court. “While the agency was not required to pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns.”

Roberts added that Nielson’s explanations for the rescission added “several new justifications” to the rescission while taking no new actions. The Court determined that since no additional steps were taken, Nielson “was limited to elaborating on the agency’s original reasons. But her reasoning bears little relationship to that of her predecessor and consists primarily of impermissible ‘post hoc rationalization.’”

The Court found that Duke’s two errors were “arbitrary and capricious” and thus were in violation of the Administrative Procedures Act.

In Part IV of the ruling, the majority less Sotomayor found that “respondents’ claims fail to establish a plausible inference that the rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment.”

“The appropriate recourse is therefore to remand to DHS so that it may reconsider the problem anew,” Roberts wrote.

Justice Thomas filed an opinion that concurred in part and dissented in part. This opinion was joined by Justices Alito and Gorsuch. Justices Alito and Kavanaugh also wrote opinions that both dissented and concurred in part.

The conservative wing of the Court took issue with the majority opinion that DHS should try again. Alito wrote, “The Court still does not resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again.”

Thomas attacked DACA’s legal status, writing, “No party disputes that the immigration statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA is substantively unlawful.”

“This conclusion should begin and end our review,” Thomas continued, adding, “The majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law.”

“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote. “The Court could have made clear that the solution respondents seek must come from the Legislative Branch.”

Originally published on The Resurgent

Supreme Court Strikes Down LGBTQ Discrimination

The Supreme Court issued a new landmark ruling this morning when it held that federal job protections under Title VII of the Civil Rights Act should be extended to prohibit discrimination against gay workers. Even more surprising that the outcome of the ruling is that Neil Gorsuch, a Trump-appointed justice, authored the opinion. Chief Justice John Roberts also joined the Court’s four liberal justices to form a 6-3 majority.

In the ruling, Bostock v. Clayton County, Ga., includes several similar cases but is named for Gerald Bostock, a child social services coordinator who was fired after his boss learned that he had joined a gay softball league. Other plaintiffs included Donald Zarda, who was fired from his job as a skydiving instructor at Altitude Express after mentioning that he was gay, and Aimee Stephens, a biological male who was fired from his funeral home job after telling his employer that he planned to “live and work full-time as a woman.”

The ruling holds that the employers in all three cases violated Title VII of the Civil Rights Act, which holds that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex,” Gorsuch writes in the majority opinion. “It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group.”

“Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates
Title VII,” the ruling continues.

While the Civil Rights Act clearly did not intend to protect homosexuals, transgenders, and transvestites, Gorsuch notes that the letter of the law does not exclude such claims, saying, “The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the
facts.”

After noting that there is little argument over the meaning of the words “sex” and “discrimination” and that the employers admit to firing the employees due to their sexual orientation, Gorsuch states, “This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.”

In Gorsuch’s view, his decision was not judicial activism but a result of following the established facts and the written law to its conclusion. While Gorsuch may or may not have sympathy for the gay community, the facts of the case were determined by the words that Congress enacted into law in 1964.

Justices Alito and Thomas joined in a dissent penned by Alito, which notes that a bill that would have defined “sex discrimination to include both ‘sexual orientation’ and ‘gender identity'” has been brought before Congress but not enacted into law.

“The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous,” Alito charges. “Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’ And in any event, our duty is to interpret statutory terms to ‘mean what they conveyed to reasonable people at the time they were written.'”

Alito continues vividly, saying, “The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”

Justice Kavanaugh also penned a separate dissent in which he argues that discrimination because of sexual orientation and discrimination because of sex are not the same thing.

“Courts must follow ordinary meaning, not literal meaning,” Kavanaugh writes. “And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase.”

“Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning,” he continues.

In the end, the ruling is not surprising given the Supreme Court’s embrace of same-sex marriage and other gay-friendly rulings in past decades. While the ruling will disappoint social conservatives, most of the country will not be unhappy with the decision. American culture has shifted in recent decades to the point where a large majority approve of homosexuality.

The ruling does hold two important lessons. The first is that Congress should craft legislation extremely carefully and as specifically as possible. The problem is that legislators have no way of knowing how language and culture will shift 50 or 100 years after they pass a law.

Justice Alito makes this point when he writes, “The question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”

The second lesson is an established one that Supreme Court justices cannot be depended upon to always vote as their partisan backers wish. This is especially true in the case of textualists who look to the words of the law as written rather than the party platform of the president who appointed them.

To paraphrase Forrest Gump, a Supreme Court justice is “like a box of chocolates. You never know what you’re going to get.”

Originally published on The Resurgent

What If Ginsburg Has To Be Replaced This Year?

Justice Ruth Bader Ginsburg has once again been in the hospital. While her prognosis seems good, questions about the aging justice’s health do lead to questions about what would happen if she had to be replaced before the Supreme Court’s term ends in October or before the presidential election is decided.

For conservatives, the first reaction would be that Donald Trump would have the opportunity to replace Justice Ginsburg with a constructionist justice similar to his appointments of Neil Gorsuch and Brett Kavanaugh. However, the reality would not be so simple.

While the sitting president has the right to fill vacancies on the Supreme Court, any attempt to replace Justice Ginsburg six months before an election would invoke memories of Merrick Garland. In 2016, President Obama appointed Garland to fill the seat of Antonin Scalia, but Senate Majority Leader Mitch McConnell decided not to act on the appointment. In the end, the gamble paid off. Trump won the election and appointed Neil Gorsuch to the seat.

There is one very important difference between Barack Obama in 2016 and Donald Trump in 2020. Since Trump’s party controls the Senate, his nomination would be looked upon more favorably than Obama’s was.

However, Trump’s nominee would still face problems. One obvious obstacle is the antipathy that any Republican-nominated replacement for Ginsburg, a liberal icon, would receive. This is especially true since an additonal constructionist on the Court would tip the balance away from the left. (It would not necessarily tip it toward the Republicans since constructionists tend to base decisions on the law and not on partisan beliefs.)

Another hurdle would be the difficulty of holding confirmation hearings in the midst of a campaign in the midst of a recession in the midst of a pandemic. There would need to be sufficient time for senators to become familiar with the nominee’s background and judicial history.

With the Coronavirus pandemic raging, it might also be necessary to hold virtual hearings. The Supreme Court recently heard arguments via the internet, but such a groundbreaking technical achievement would take time to set up and there would be a good possibility of delays due to technical difficulties. The Senate would probably have to approve groundrules for the use of internet debate.

Per the Congressional Research Service, for nominations between 1967 and 2017, it took a median of 27 days from appointment to the first public hearing. The median time for final action on nominees by the Senate or the president was 67 days, more than two months. The fastest successful confirmation in recent years was John Roberts, who was confirmed in 23 days.

Without the filibuster, Democrats would have no hope of voting down a Trump appointment without Republican help. They could, however, delay and obfuscate as they did in the Kavanaugh nomination. With the stakes so high, the fight would be brutal and dirty.

As the election approaches, a confirmation will be harder and harder to pull off. Senators of both parties will want to hit the campaign trail rather than sitting through hearings on a hot-button issue in Washington. At the moment, it looks as though many Republican Senate seats will be vulnerable so Mitch McConnell will want those senators on the road to defend the Republican majority.

After the election, there would be plenty of time for a confirmation but there is the risk that a lame-duck Senate would not confirm an appointee, especially if Donald Trump is a lame-duck president or if control of the Senate changes hands. It would be difficult to justify ignoring the outcome of the election and pressing forward with a nomination by an unpopular president who might well be on his way out the door.

While many Republicans would have no ethical qualms about confirming a Trump appointee under those conditions, even coming only four years after Merrick Garland and the notion that voters should decide the fate of the open Supreme Court seat, there is a good chance that some would. It would only take the defection of three Republicans to scuttle the nomination and those who had just been fired, thanks in large part to Donald Trump, might not be in the mood to do the president or the party any favors. Those who want the possibility of a future in politics might think twice before crossing the voters who had just shown them the door.

If Mitch McConnell could corral his caucus and keep the confirmation short, a justice could be confirmed but what then? If Republicans replace Ginsburg with a Trump-appointee, the left would be apoplectic. If this happens before the election, the resulting anger may fuel Democratic engagement and lead to a blue wave election.

A similar effect was seen in 2018 when the treatment of Brett Kavanaugh was credited with getting Republican voters fired up. The Republican anger didn’t stop that year’s blue wave, but it did blunt the losses in the Senate.

A second possibility is that Democrats might be emboldened to use an FDR-era strategy to overcome the conservative advantage on the Court. Several Democratic presidential candidates have already endorsed a “court-packing” plan that would expand the Supreme Court to as many as 15 seats. The new justices would, of course, be appointed by a Democratic president and confirmed by a Democratic Senate if things go according to their plan.

While the Constitution establishes the Supreme Court, it does not specify how many justices make up the Court. Congress established the number of justices by legislation. There were originally six justices but the number has been changed several times. The present configuration of nine justices has been in place since 1869. In 1937, Franklin Roosevelt tried to overcome a Supreme Court hostile to his New Deal by mandating retirements for justices and adding new seats.

Roosevelt’s plan was unpopular in both parties and failed, but some Democrats are ready to revive the strategy. They see the failure to confirm Garland as well as numerous other Obama appointees to lower courts as a departure from congressional norms that gave Republicans an unfair advantage. Although the Republican strategy was not illegal, if the truth were known, conservatives would feel the same way if the roles were reversed.

Even though many Republicans no doubt hope that Donald Trump will be able to replace Justice Ginsburg with a judge of his own choosing, it seems that the country would be better served by having the debate over a new justice in calmer times and with cooler heads. While I disagree with many of Justice Ginsburg’s decisions, I do wish her good health… for the good of the country.

Originally published on The Resurgent