The few sentences that follow below were selected almost at random from a commentary on Judge John Roberts, whose nomination to the U S Supreme Court, we are told by the commentator, “has reignited the controversy over faith and the confirmation process… From everything that has been reported so far, Roberts looks eminently qualified for the high court. His record paints a picture of a temperamentally moderate jurist who would be very unlikely to challenge precedent in the name of ideology, or to use his public position to advance his personal values. But what if there was a nominee who showed less restraint? Would that candidate's beliefs still be out of bounds for questioning as long as they were religious in nature?”
Now, the first thing we should notice in this commentary is the author’s use of the devil word “ideology. Is religion an ideology? If it is an ideology, and if it is the only ideology not to be permitted to inform the decisions of Supreme Court justices, have we not given an unjust advantage to other competing ideologies, such as atheism, feminism and secularism?
The current beef with Roberts is not over ideology or a disposition to violate precedent. It is Robert’s religion, Roman Catholicism, that has become a problem for political interest groups who wish to maintain the status quo.
Commentators who only recently have become frighteningly conservative on the matter of precedent, most especially the recent precedent set by the Supreme Court when it overthrew state statutes banning abortion, cannot plausibly claim that the weight of precedent should make it impossible for judges to display their ideologies in their written opinions. Supreme Court justices are far more ideological on this score – but, one supposes, less religious – than ministers and priests.
There is nothing wrong with permitting one’s personal or religious values to inform judicial and political decisions. When Justice Harry Blackmun, who wrote the majority opinion in Roe v Wade, could not find a clear sanction in the US Constitution to overthrow centuries of legal precedent banning abortion, he deduced what amounted to a “privacy right” from constitutional penumbras formed by emanation discovered only a few years earlier by the court. Blackmun proceeded to interpret his fictional constitutional “text” in such a way as to provide reasonable grounds for ringing in the era of abortion on demand. The personal values of pro-abortionists certainly were advanced by the decision.
Now, whatever one may think of Blackmun’s interpretive methods – and some honest-to-God liberals insisted at the time that Blackmun’s interpretation was, to put it politely, all wet – there can be no disagreement that Blackmun’s decision was the work of an ideologue who certainly was not on friendly terms with legal precedent. The so called “ideologues” in the Catholic Church – Catholics call them theologians and philosophers -- have been far less bold than Brenner.
Can we be honest?
Roe v Wade and a companion decision that together provided abortion on demand are not ancient precedents. They are barely newborn: The umbilical cord on these precedents is still visible. The political interests groups that support abortion on demand only recently have become comfortable with legal precedent because they do not wish justices who may be as ideological as Blackmun, though more conservative in their constitutional interpretation, to overthrow what they perceive to be their settled interests.
The current problems with nominees to the Supreme Court arise from a clash of political interests. Despite the usual comforting chatter about the separation of church and state, there is nothing in the U. S. Constitution, the Bill of Rights or the deduced “penumbra of rights” surrounding the constitution that would reduce to second class citizens Catholics who wish to practice their faith while in office.
While all ideas certainly are not equal, the terrain upon which the battle for ideas are fought should be level, and persons embracing ideas stigmatized as “religious” should not be barred from the contest.
The real problem – which will remain unless it is boldly confronted – is rooted in the changing nature of the Supreme Court. Appellate courts have become engines of social change, which in democracies is necessarily a political rather than a judicial function; that is to say, it is a function that can only properly be performed by the representatives of the people, who may discharge those who displease them.
Alexander Hamilton said in the Federalist that the courts could not substitute their pleasure to that of the legislative body because they were constitutionally empowered to exercise their judgment rather than their will.
Given the inflated powers of the court, Hamilton’s notion seems quaint. If it were true, not even Sen. Edward Kennedy would trouble himself over the nomination of Supreme Court justices. The fire that now scorches the heads of Supreme Court nominees has been brought down upon them by the excesses of past justices.