John Roberts and the Supreme Court

To hear folks on the Left talk, one would think that the fate of America's way of life hangs in the balance with the specter of a John Roberts appointment to SCOTUS. This is patently silly, of course. What might hang in the balance in a way of being governed that has allowed the Supreme Court to become the final word on legal matters -- a state of affairs it decidedly not what our constitution calls for, although most Americans don't know this. For instance, Article One of the constitution says:

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article Three tells us that the Congress sets the parameters of the Supreme Court's jurisdiction, at least that is what a straight-forward reading seems to say.

From Section 2. . . the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

If John Roberts is a so-called "strict constructionist" then we might be able to return to a time when we are more true to the concept envisioned in our constitution, i.e., that America is a Constitutional Republic.

The Left, however, is no alone in its rhetorical hyperactivity. Many on the Right are worried that Roberts is not clearly and staunchly enough committed to a anti-abortion agenda or that he is not clear enough on a resistance to expanding gay-rights.

The problem with the Right's thinking, however, is that they seem to buy into the very notion that the Left does. The idea of which I speak is that some how the Supreme Court of the United States should seek to make "moral" or political decisions in its rulings. This bias is precisely revealed in the Left's call for "balance" on the court, as though the role of the court is to take into account competing interests or perspectives, rather than apply the constitution.

But that is certainly not the role of the SCOTUS. (That is the task of the Congress.) Its task should be to apply legal and constitutional standards for any and all cases that come before it. (It is perfectly possible for a law to be constitutional and not moral. Consider slavery, for instance. Or not granting women the right to vote.)

The best we as Christians should hope for in Roberts as a judge or any other nominee is not a pro-life agenda (although I favor one) nor any other conservative agenda, but a commitment to carefully and disciplinedly read, understand, and apply the constitution to cases. Where the constitution does not speak, all Justices should say so, and throw back into the political and legislative dialogue the issue.

That kind of situation does not sit well with those who want particular outcomes, right now. It is, however, what our way of life calls for and it is the only way to come to moral consensus politically for the sake of passing legislation that can then be embraced by a clear and sizeable majority of the populace.

Such a public debate is sorely missing today, but it has not always been missing. The late Neil Postman reminded us in his book Amusing Ourselves to Death, that in the eighteenth century and nineteenth century informed political discourse was common among all classes of people.

By 1772, Jacob Duche could write: "The poorest labourer upon the shore of the Delaware thinks himself [because so well-informed] entitled to deliver his sentiment in matters of religion or politics with as much freedom as the gentleman of scholar. . . . Such is the prevailing taste for books of every kind that almost every man is a reader."

The point is that America's greatness was built upon political discourse among its populace, not among the political elite only, and certainly not among Justices. It is this kind of ongoing civil, informed, and reflective debate that our constitution calls for.

What we should want is Justices that allow that to happen.