August 02, 2005

For Heaven's Sake

by PG

Apologies for posting on the John Roberts Supreme Court nomination twice in a row, but this E.J. Dionne piece in the Washington Post misunderstands jurisprudence so thoroughly that I couldn't resist. Dionne declares that Democratic Sen. Richard Durbin is justified in asking about Roberts's religion because

a) Republican Tom Coburn has said that Roberts's "personal faith" reassures him about how the judge will rule on culture of life issues; and
b) pro-choice Catholic Mario Cuomo said, "the bishops who went after Kerry would have to say that it's different for a judge, but that would be very hard to explain."

a) Why are we paying attention to someone who worries about lesbians in the bathrooms ?
b) No, it wouldn't.

Politicians make decisions based on the wisdom of a policy, and their opinion of its wisdom may well be influenced by religious teachings on the subject. I don't think that someone's own preference on whether to have an abortion or euthanasia should make the law for the rest of us, but I accept that it is how things are done. We have seen the difference in how the Executive's preferences play out in policy with the difference between the Clinton and Bush II administrations on fighting Oregon's assisted suicide law; Janet Reno refused to take action against doctors, while Ashcroft sought to take away medical licenses.

Justices, on the other hand, make decisions based on the Constitutionality of a policy. Do justices' constitutional philosophies tend to track their policy-outcome preferences? Certainly, but there are frequent divergences, as when liberal pro-medical marijuana justices had to rule against California's program in order to maintain their expansive commerce clause, and anti-pot but pro-states' rights O'Connor dissented from that opinion. In the "culture of life" area, a federalist justice may feel obliged to rule for the state in Ashcroft (now Gonzales) v. Oregon, even if he opposes assisted suicide as a policy matter.

To tiptoe into really personal territory, consider the line of privacy cases. The political focus is on Lawrence and Roe, ignoring the intellectual basis for those controversial decisions: Griswold. The Catholic Church technically prohibits contraception, but while the nine-times-a-father Scalia may hew to that rule, the younger generation of which Roberts is a part is less likely to do so. (Roberts and his wife married in their early 40s and adopted two children.)

Without delving any further into an individual's choices, I would assume that Roberts probably doesn't think contraception should be illegal. (Ditto Clarence Thomas.) However, in the unlikely event that Griswold comes up for review, he may well vote to overturn it as part of his Constitutional beliefs, not his Catholic ones. It is therefore the former and not the latter about which we should be asking.

August 2, 2005 12:13 PM | TrackBack
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