Justice John Paul Stevens is 88, Justice Ruth Bader Ginsburg is 75. Justice Anthony Kennedy is 72. Justice Stephen Breyer is 70. Justice David Souter is 68. Given those demographics, the next president of the United States will likely nominate at least one, and perhaps several, justices to the U.S. Supreme Court.
Once upon a time, that would have been considered a non-issue in a presidential election. Things have changed, however: the court now plays a major, substantive role in our national political life that would have surprised, and perhaps dismayed, the Constitution’s Framers. Indeed, the combination of its own assertiveness and the Congress’s pusillanimity has turned the Supreme Court into the cockpit of the American culture war.
Beginning with the Everson decision in 1947, the Court has read the First Amendment in ways that seem to imply an establishment of secularism in American public life. Supreme Court decisions upholding racial quotas and defending a “right to pornography” (including Internet child pornography) have incensed many Americans, of all races, classes, and religions. The Court’s abortion jurisprudence since the early 1970s has imposed a radical regime of abortion-on-demand on the entire country, Speaker Nancy Pelosi‘s confusions on the facts here notwithstanding. The recent Boumediene decision on the alleged habeas corpus rights of alien terrorist suspects held abroad inserted the Court into the national security debate in an unprecedented way.
The Court acquired considerable moral authority in 1954 by its wise decision in Brown vs. Board of Education, which accelerated the nation’s journey to equality before the law (while effectively reversing the mistake the Court made in Plessy vs. Ferguson, the 1896 case in which segregation laws were held constitutionally permissible). Some would argue, and not without reason, that that moral authority has now decayed into potentially dangerous forms of judicial arrogance. Mistaken decisions are bad enough; to have nine unelected lawyers instructing more than 3 million Americans to fall in line and stop criticizing the Court’s work raises grave questions about the health of our democracy.
This trend toward the judicial usurpation of politics — which is widespread throughout the federal judiciary, and culminates in the Supreme Court acting as an unelected and unaccountable national legislature — has been challenged intellectually by notable legal scholars, whose work has now borne fruit in a genuine debate, within the federal courts and on the Supreme Court, over the limits of the judiciary’s role in our public life. That debate, in turn, has begun to have real effect in some federal judging. Yet things are now balanced on a knife’s edge, such that the next president could well determine whether, for the foreseeable future, the Supreme Court and the lower federal courts play a more modest role in settling controverted issues or become an even more dominant force in both domestic and foreign policy.
Thus Catholic voters may wish to pose several questions to both major presidential candidates:
1. In the encyclical Centesimus Annus, the late Pope John Paul II wrote that the Church’s regard for democracy rests in part on the possibility of citizens participating in governance, and in part on the democratic system’s public accountability. Are you concerned that the increasing role played by federal courts in adjudicating hotly contested questions of public policy threatens the moral texture of our democracy, and indeed the entire democratic process?
2. Recent Supreme Court opinions have cited foreign and international legal materials in interpreting our Constitution. What role, in any, should contemporary foreign law play in American legal reasoning?
3. Does the Constitution mandate a “naked public square,” shorn of religiously-informed moral argument?
4.Was Justice Byron White (appointed to the Court by President Kennedy) correct in describing Roe vs. Wade as an exercise in “raw judicial power”?
5. How do you regard recent Supreme Court thinking on the rights of alien terrorists in U.S. custody?
6. Has the Supreme Court’s acceptance of certain types of racial and gender quotas advanced or impeded the project of “liberty and justice for all”?
7. Does the Supreme Court have the authority to impose same-sex “marriage” as a constitutional right?