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The Supreme Court’s Penumbra of Politics

by James Hitchcock
July 21, 2005

The evidence seems to show that John G. Roberts Jr., President Bush’s nominee to the Supreme Court, is “conservative” on two issues that most trouble many religious believers – abortion and the role of religion in public life. He has acknowledged that Roe v. Wade, the Supreme Court decision that made abortion legal, is law, but that admission does not necessarily mean that it could never be overturned, as many Supreme Court decisions have been. But anyone who proposes such a thing is called a dangerous enemy of the Constitution, as though every Court decision really is set in concrete and should never be questioned.

Political battles are often over terminology. Thus in the media Chief Justice William Rehnquist is a “conservative,” but Justice David Souter (a Republican appointee) is seldom called a “liberal.” The retiring Justice Sandra Day O’Connor (another Republican appointee) is a “pragmatist,” praise that would not be bestowed had she not thrown her weight towards the protection of abortion. Anyone who thinks the Court has itself strayed from the Constitution is then an “extremist.”

The claim that the Constitution mandates “a wall of separation of church and state” dates only from the Supreme Court of 1947, and numerous historical inquiries since then have shown that few people prior to that time thought that is what the Constitution means; most of the Founding Fathers probably did not. Frequent repetition of the phrase has led many people to assume that it is true. Editorial writers, for example, seldom even bother to argue it; they merely keep repeating it.

Since 1947 the Court has found any number of things in the Constitution that were never dreamed of by the Founding Fathers, or most Americans, the most notorious being the “right” to abortion in 1973. All criticism of the Court is met with the prim reply that the justices merely insure that the Constitution is respected, but even those who make this claim do not really believe it - if Roe were overturned, the Court’s liberal defenders would express outrage at such an abuse of power. Roe, like the series of church-state cases beginning in 1947, was itself a radical departure from what went before. Over the past sixty years the Court has made a revolution and, as with all revolutions made in the name of “freedom,” we are now told that we have no right question it.

Abortion remains the preeminent issue, the textbook example of the Court’s misuse of its power. The Founding Fathers would be amazed to be told that they were protecting such a right, and even some pro-abortion legal scholars admit that the reasoning the Court used in Roe is fallacious, such as finding something called “penumbra,” the existence of which seems visible only to those who invented the term. It is now also clear that some of the justices who enshrined the “wall” theory in 1947 had an animosity against traditional religion, which they thought was dangerous to the country. Some frankly admitted that they decided cases largely on the basis of what they thought was right, then looked for arguments to support their position. When the Court began positing the “wall,” it simply enacted the personal opinions of a majority of its members.

Thus in today’s Court we are asked to trust in the wisdom of an unelected body, not answerable to anyone, its members serving for life, who issue binding decrees on an ever-expanding list of issues that deeply affect our lives. It is a phenomenon that itself marks a radical departure from the Constitution the Court is supposed to uphold, and no one today would even dare propose the establishment of such a body.

For almost fifty years Republicans have been promising to change the direction of the Court, but the results have been meager at best, and some of the greatest damage (as in Roe) has been done by Republican appointees. It is to be hoped that the future Justice Roberts will be a significant step in the fulfillment of that promise.

James Hitchcock, professor of history at St. Louis University, writes and lectures on contemporary Church matters. His column appears in the diocesan press. His two-volume book on religion and the Supreme Court has just been published by Princeton University Press. E-Mail: Dr. James Hitchcock

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