The Supremes and The Rest of Us

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?

George Weigel


George Weigel is an American author and political and social activist. He currently serves as a Distinguished Senior Fellow of the Ethics and Public Policy Center. Weigel was the Founding President of the James Madison Foundation.

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  • Bruce Roeder

    The concept of a “living Constitution” reminds me of the book “Animal Farm”

  • heinz

    I see where you are coming from Bruce. I also find it quite striking that we are trying to set a neo-socialist government here in America. Who knows, maybe in ten years, we’ll switch from “four legs good; two legs bad” to “four legs good; two legs better.”

  • Richard Bell

    I am deeply saddened by the apparent outrage that the author feels about suggestions that the supreme court wants to extend habeas corpus rights to detainees.

    How does he know why they are detained?

    The administration has never been required to give any justification for any detainee. Many of them were arabs visiting Pakistan for their own reasons when the US administration suspected that islamic foreigners in Pakistan were really going to secret Taliban training camps. These people have been held without justification for years and the US is too ashamed to admit that they have no evidence of terrorist conections.

    If the administration cannot explain why someone is detained, that person should be released. Right now, the Bush/Cheney administration is using sophistry to hide the fact that many detainees are not unlawful combatants (anyone not pulled in for actually raising arms against US interests is, by definition, a non-combatant [they can still be a criminal, but criminals have rights]).

    When you allow the government to conclude that someone distant has no rights, you are tacitly consenting to the notion that nobody, including yourself, has rights.

  • SolaGratia

    Richard Bell, given the huge amount of animus toward Bush from the left, I have to wonder what is your source for this?

    Why weren’t those innocent travelers released with the others whom it was widely reported the govt. had questioned & released in at least two different groups upon finding nothing of note?

    If the govt was willing to release those, then this alleged conspiracy to hide their embarrassment by continuing to hold innocent people doesn’t seem to make a whole lot of sense.

  • Warren Jewell

    Mr. Bell,

    First of all, habeas corpus pertains to criminal law as happening on civil levels. It does not pertain to persons caught in acts of war against the country or its military.

    Second, those so confined for acts of war have been and should be the sole jurisdiction of the executive branch as place of the commander in chief of U.S. military powers, the President. That pusillanimous Congress should have backed the President on this. But, then Congress should long, LONG ago have put the judiciary in its place. Some legal scholars and historians think we’d have to look for Congress to come down on the supreme court all the way back to Marbury.

    Thomas Jefferson and others knew that the judiciary could become thuggish and autocratic. These founders would be very displeased that Congress has not trimmed the judiciary, pinioning them to true judicial (and not legislative or executive) functions.

  • Cooky642

    Mr. Bell, as much as you may regret living in the United States of America, may I remind you that these prisoners have been and are being released as the military finds them of little or no use? At least their throats are not cut on television for the amusement of the viewers as Daniel Pearl’s was.

    Secondly, our Constitutional guarantees are specifically set forth for the protection of American citizens, not illegal residents or alien citizens not even on our soil. If and when this interminable election cycle is over, I plan to find or start a movement aimed at eventually making the legal branch of government an ELECTED, rather than APPOINTED position.