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Religion, Politics and Judicial Principle

by James Hitchcock
October 16, 2005

It was improper for critics to raise the issue of the religious beliefs of John G. Roberts Jr., the new chief justice of the Supreme Court, but it is unfortunately a legitimate question when posed to President Bush’s second nominee, Harriet Miers. Unfortunately also, it could have been avoided. Lest anyone be suspicious, I do not say this because Roberts is a Catholic and Ms. Miers is a Protestant. The Court is long overdue to have a strong Evangelical Protestant sitting there. Rather we have been put into an unnecessary and unfortunate situation by the White House’s ineptitude.

Ms. Miers’s critics, both liberals and conservatives, charge that she is underqualified, and there is no doubt that her credentials are a good deal less impressive than those of most nominees to the high court. This is not a gender issue – conservatives had identified several highly competent women judges from among whom the President could have made a choice. There is also the uneasy question of “cronyism” – the fact that the nominee is one of the President’s attorneys and a close friend, someone whom he has said he feels “comfortable with,” which is not a very good reason for entrusting a large part of the nation’s future to her.

Roberts revealed very little about his judicial philosophy and even implied that that he has none, although he undoubtedly has. Ms. Miers’ judicial philosophy is necessarily unknown, because one of the best ways of discerning such a philosophy is through decisions handed down by judges already on the bench.

Many conservatives are upset over the appointment because they think President Bush has missed a golden opportunity to tip the balance on the Court, something Republicans have been promising, and failing, to do for decades. The Miers appointment looks all too political in the narrow sense – based not on principle so much as on personal loyalty, rewarding a friend who professes not to have any particular ideas about the Constitution she will be called upon to interpret.

This is where religion comes in, because the President has attempted to reassure his conservative critics by pointing to Ms. Miers’s strong Evangelical associations. One leading Evangelical, James Dobson, says that he has been given private assurances from the White House that her views are the right ones.

This manages to be both improper and bad politics, because no one should be appointed to office on the promise that he or she will legislate or decree their own religious beliefs. Roberts said nothing about his religion. It was his critics who in effect violated the Constitution by trying to impose a religious test on him.

On the crucial issue of abortion, as far as the law is concerned the point is not that it goes against religious teachings but that the claim that it is a “constitutional right” is a brazen falsehood that sprang fully armed from the head of Justice Harry Blackmun in 1973. There is not the slightest evidence that the Bill of Rights was ever thought to insure any such right. Thus overturning Roe v. Wade, Blackmun’s decision, should occur on the grounds that it was a travesty of constitutional interpretation, something that is admitted even by some of those who favorite its results. That is where the argument belongs, not on religion.

If Roe v. Wade were ever overturned, and if various states then proceeded to restore abortion through law, as some undoubtedly would, I think it would be proper for the Supreme Court to overturn such laws on constitutional grounds. Until the 1970’s abortion was a crime, which means that the lives of the unborn were protected under the general right to life which the Constitution guarantees. Far from there being a constitutional right to abortion, the unborn have a constitutional right – now callously denied – to live.

The religious beliefs of public officials should indeed influence their judgments. But on the Court this should happen at a level that goes beyond specific constitutional issues. Since 1947 a majority of the Court has treated religion as something dangerous to the public order, therefore to be quarantined. But even justices without strong religious beliefs should recognize what was taken for granted throughout most of American history – that religion is essential to society and should be encouraged. The idea of “separation of church and state” now enshrined is itself a false understanding of the Constitution.

Unhappily, by his latest judicial nomination President Bush has played directly into his critics’ hands, and they will not fail to use the weapon he has given them.

James Hitchcock, professor of history at St. Louis University, writes and lectures on contemporary Church matters. His column appears in the diocesan press. Dr. Hitchcock's two volume work, The Supreme Court and Religion in American Life, Vol. 1 The Odyssey of the Religion Clauses and Vol. II From 'Higher Law' to 'Sectarian Scruples', was released by Princeton University Press September 2, 2004.

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