How should Christians look at the Supreme Court? That question has occupied pastors and theologians, to say nothing of the people in the pews, all the way back to the Court’s 1857 Dred Scott decision. That decision sent an escaped slave back to his master, lighting a fuse among abolitionist preachers. Some Christians counseled obedience on biblical grounds. Others insisted that the time had come to go into politics. Many decided that the time had come to go to war.
Fast forward to our era. During the recent confirmation hearings for John Roberts, Sen. Arlen Specter pressed the nominee to describe the relationship between his faith and his judicial philosophy. Said Roberts, “There’s nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the court faithfully under principles of stare decisis.”
Roberts gave the right answer. Indeed, in a nation premised on the rule of law, he gave the only answer that propriety allows. But many activists on the Right, fervently hoping for new justices who will reverse some of the Court’s work of the last 30 years, expressed concern about the carefully crafted tenor of his responses. As one of my colleagues at Yale Law School recently observed, conservatives who wanted a revolutionary have seen their President appoint a moderate instead. Certainly nobody will ever confuse the leanings of John Roberts with those of, say, Chief Justice Earl Warren. But anyone expecting a precedent-hunter modeled after, say, Justice Antonin Scalia will wind up sorely disappointed. Roberts does not appear to be a man on a mission. He appears to be a judge.
Christian activists, whatever their politics, should put aside dreams of creating a Supreme Court that will order the American public sphere to their liking. (Secularists should put aside the same dreams, but that is a subject for another day.) In a democracy, it is not the proper role of the courts to serve as the vanguard of any political or social movement, imposing on a dissenting nation a host of rules that the people are bound to resist. The late Alexander Bickel, one of the greatest legal scholars of the past century, warned repeatedly that judges must avoid hubris, exercise their authority with prudence, and attend, always, to the possibility that they might err. That is why, in his book The Morality of Consent, Bickel described the interplay between court and public as “a conversation not a monologue.”
Activists of both Left and Right often want a monologue from the Court. They want the justices to simply announce the vision of society that a particular social movement prefers. They imagine that people will simply go along with whatever the Court decrees. This approach gives the justices more than their due. Certainly the courts must settle disputes. When the dispute involves the Constitution, certainly the Supreme Court will eventually render a judgment. But the Court best serves the nation when it acts with humility and caution, allowing politics, not judicial temper, to rule.
Even the Court’s undeniably controversial Brown v. Board of Education decision, which held that the separate-but-equal doctrine of the public schools was unconstitutional, was the culmination of more than a decade of litigation. Before Brown, earlier cases had chipped away at abominable precedents as the justices gently prodded a resisting nation in the direction of righteousness. One might complain, correctly, that justice should have been served sooner. But it is the nation as a whole, not the nine members of the Supreme Court, which must shoulder the blame for the tragedy of Jim Crow.
Naturally, those who nowadays see Roe v. Wade and its progeny as abominations will want to see them swept away, the faster the better, but they might do well to heed the lessons of Brown. To grab too much, too fast, is to mark oneself as a revolutionary, not an advocate of restraint. Frankly, revolutionaries make America a little nervous.
In the years to come, the justices will face several opportunities to chip away at the corners of Roe. In the current term, the Court will likely decide on parental notification for minors seeking abortions. This is a perfectly sensible restriction that is popular even among Americans who describe themselves as pro-choice. Soon the Court will confront statutes restricting the availability of abortions late in pregnancy, especially partial-birth abortions.
A moderate, thoughtful nation might be gently led to see the error of Roe by a moderate, thoughtful Court. A revolutionary attack on its center will certainly fail. If the justices lead the revolution, it will justifiably fail. If it is wrong for the Supreme Court to insist on revolutionary change according to the passions of its members, it does not become right simply because of a change in personnel.
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