Could a Mormon Fill the Supreme Court Vacancy?

United States Supreme Court Building

Mormons might find themselves in the political spotlight again before long. Last week, judge Anthony Kennedy of the Supreme Court announced his retirement, effective July 31st. In 2017 President Trump made his list of 25 picks for Supreme Court nominees public. There are two names you might recognize: Mike Lee and Thomas Lee, the two Latter-day Saint sons of the late Rex E. Lee.

It hasn’t been since the presidential campaign of Mitt Romney that the Mormon Church has been in this particular spotlight. As this will be Trump’s second Supreme Court appointment of his presidency, you can be sure that Mike and Tom will both face mountains of scrutiny from both sides of the aisle.

But who are these two Mormon boys from Utah? And do they stand any real chance of being nominated?

Mike and Tom

Mike lee portraitProbably the most well known of the brothers is Mike Lee who is currently serving as a Senator for the State of Utah. Lee was one of the few Republican Senators to not endorse Donald Trump’s presidential campaign. Which makes it quite remarkable that Lee is even on the list in the first place. Trump is famous for valuing loyalty over all things. And Lee is famous for being among the least supportive Senators of Trump’s agenda.

Lee has said he would not turn down Trump’s nomination if it came his way. And many Senate Republicans have expressed support for Lee. Ted Cruz (R-Texas) has said, “[Lee] is the single best choice” to fill Kennedy’s vacancy. According to Cruz, Mike Lee “is not going to evolve” his views if nominated. Whether Lee’s capacity for “not evolving” is an insult or a compliment, I’m not sure. But what is certain is that the eyes of Washington are on Mike Lee in particular.

Mike Lee’s older brother, Thomas, also finds himself on Trump’s list of 25. What makes Tom perhaps more qualified for the SCOTUS vacancy than Mike is that he is currently the Associate Chief Justice of the Utah Supreme Court. As well, he was considered to replace the last SCOTUS vacancy, in 2016, left by the death of Justice Scalia. Tom’s approach to being a judge is “to say what the law is, not what it should be.”

A Mormon in the Supreme Court

How real of a chance do either of the Lee brothers actually stand at being picked? It’s hard to say. The last time a Mormon was being considered for a top government position was Mitt Romney. And it is probably fair to say that being a Mormon hurt his chances more than helped. While Tom was the favorite to replace Justice Scalia, that didn’t happen. And while Mike may be the Senate’s favorite, he doesn’t have any actual judgeship experience.

Another Mormon, you may have heard of, named Dallin H. Oaks, also was considered to fill a SCOTUS vacancy in 1975 and 1981. President Oaks was then serving on the Utah Supreme Court, just as Tom Lee is now. However, Oaks never got another chance to be considered for a SCOTUS vacancy. In 1984 he stepped down from the Utah Supreme Court to join the Quorum of the Twelve Apostles. So, while both SCOTUS vacancies were filled by other individuals and Oaks pursued other opportunities, the Mormon imagination has always wondered what if…

church state street signs

What would it be like to have a Mormon on the Supreme Court? If I had to speculate, probably no different from any other Supreme Court Justice. There have been other Justices who have had religious personal lives. And while you can be sure that religious values influence any particular Justice’s jurisprudence, their duty is to the Law—not their religion. One of the ideological foundations of the Constitution is the separation of Church and State. No Supreme Court Justice could favor one religious body over another and be doing their job right.

If Mike or Tom were nominated in the coming months, we shouldn’t expect the Mormon Church to get any special treatment from the Government. That would be illegal. But it’s hard to foresee any genuine circumstances where the Church would be involved with the Supreme Court anyway—so it’s likely a moot point.

And if there is anything this current presidential administration can be counted on being—it’s unpredictable. Trump defies expectations at every turn. So speculation about whether Mike or Tom Lee will be nominated might be equally as much a moot point. Time will tell, though. The Senate majority, as well as the President, are intent on filling this SCOTUS vacancy before midterm elections this November.

But what do you think? How would America react to having a Mormon Justice on the Supreme Court? Do you think Mike or Tom Lee would be a good choice? Let us know in the comments.

Madison is a hobbyist chef and part-time gastronomist. He is passionate about physical and spiritual human health and wellness. To him there is no better experience than dirty feet, hugging trees, and gardening. He enjoys meadow-crossing, hiking, and pleasurable saunters through the woods. All things Marvel are under his belt, as are both cheap thrills and intellectual voyages in film. Presently he writes for Inqua Magazine, MormonHub, and the Utah Lake Commission.