Why political manipulation has not budged the Supreme Court
There has been weeping and gnashing of teeth by the Axis of Evil, dissatisfied with George W. Bush's nominations to the Supreme Court of the United States. Who is the Axis of Evil? Robertson, Viguerie, Schlafly, Bork, Falwell, LaHaye, Brownback... Dr. Dobson hangs out with this crowd, but I cannot characterize him with this unflattering label. Dobson's well-known books, pamphlets and inserts on family and child-raising are insightful, timely, thoughtful... excellent companions to Dr. Benjamin Spock's book on Baby and Child Care. His web site does indulge in nonsense about five year olds showing signs of homosexuality if they prefer reading to picking fights with other boys their age. Still, one can only wonder at the political company Dobson seems to keep. He ought to know better.
It seems that the Axis of Evil have been trying for twenty five years to pack the court with judges who will rule as this shady cabal wishes the court to rule. Somehow, with three appointments by President Ronald Reagan, another Reagan appointment elevating a Nixon appointee to the post of Chief Justice, two appointments by President George Herbert Walker Bush, and a measly two appointments by President William Jefferson Clinton (who found the most bland, unideological nominees imaginable), every new session of the court appalls self-styled "Christian" leaders. You would think they could be winning 6-3 decisions on a regular basis, considering Rehnquist's vote, on top of the new appointments by their favored white house tenants.
The reason these subversive enemies of the American republic cannot win is very obvious. What they seek is simply not provided for by the Constitution and laws of the United States of America. It never has. A large part of their program is hostile to the most fundamental principles that inspired our founding fathers. As judges are appointed to the Supreme Court, they come to terms with this plain and simple truth. Each justice, whatever their loud and outspoken utterances before joining the court, has recognized that they really are there to preserve, protect and defend the Constitution of the United States. They are not there to rewrite it. Every justice has done their job with integrity and respect. That is why they have disappointed the Axis of Evil.
Each justice does, of course, make mistakes. The court as a whole has made decisions that may come back to haunt us in various ways in the future. No human institution is perfect. Every human institution, including the government of the United States of America, is a reflection of the free will God allowed to his last and most complex creation. (On this note, I have news for Dr. Dobson: God does not have a preferred choice for our next justice. The government of the United States derives its powers from the consent of the governed, and God is watching to see what we do to and for ourselves.) The court has for the most part stayed within the boundaries of fine-tuning the details by which broad, fundamental concepts apply to sticky, real-life controveries. It has not thrown the plain meaning of the Constitution out the window, to pursue any political establishment's personal preferences.
Justice Scalia has long recognized that there really IS an Establishment Clause in the First Amendment. It really does say that "Congress shall pass no law respecting an Establishment of religion." Scalia has laid out arguments that acknowledgment of God by government bodies is acceptable. He has relied on Jewish and Muslim sources, as well as Christian, to hold that our nation was founded on monotheism, not on any specific faith. He has also passionately defended the right of believers in many gods, no god, or a disinterested creator who does not intervene in daily life, to the free exercise of their beliefs. The problem the Falwells and Schlaflys and LaHayes must face is that they wish to Establish a religion. No judge of any integrity, sitting on the Supreme Court, now or in the future, could ever give them what they seek.
Justice Scalia has proposed to streamline the tangled web of Establishment Clause jurisprudence by applying a simple "coercion test." If a person is coerced by government authority to participate in a religious exercise, it would by unconstitutional Establishment of religion. No coercion, no establishment, no violation. That would indeed allow more room for public acknowledgment of God. But it would not allow for mandatory prayer exercises at the start of the school day, nor would it define the United States as "a Christian nation" which it has never been.
Justice O'Connor has proposed a simple "endorsement test." Government action which makes members of certain faiths into "political insiders" while members of other faiths or no faith are "political outsiders" would be prohibited. Quite possibly, a sound, streamlined approach would use both tests, plus the exercise of sound judgment in close cases, such as Justice Breyer relied on to uphold the existence of a Ten Commandments monument on the grounds of the Texas state capitol. That makes two Reagan appointees and a Clinton appointee, all upholding the First Amendment, while contributing slightly different approaches to the application.
The politically insignificant debate over abortion is going nowhere for similar reasons. Despite the best efforts of its deluded friends and its avowed enemies, Roe v. Wade remains good law for good reason. The decision has no more legal significance than Justice Harry Blackmun recorded in his private notes, recently studied. All the constitution provides is that so intimate a decision should lie between a woman and competent medical advice. True, the profusion of "clinics" primarily dedicated to abortion is an obscene parody of this simple principle. They provided a convenient lightning rod for those who wished to impose their own vision on every pregnant woman. But fundamental law does not change merely because it is misunderstood or misused.
Justice Thomas often gets this wrong. Fortunately, he is only one of nine justices. The rulings of the court emerge from discussions among all nine, as well as being decided by a majority. Justice Thomas wrote that "a state may allow abortion" but the constitution does not require any state to do so. Of course he has it backward. The constitution does not allow or authorize any state to do much of anything. The states simply retain powers they had prior to ratifying the constitution. The federal government has only the powers granted to it by the constitution. The constitution does restrict the powers of the states, but is not the source of the authority that the states do possess. Nor does any woman require permission from a state to have an abortion. The question is whether a state may impose criminal penalties for abortion. The answer, in the third trimester, is yes, except if the mother's life is in danger. The answer in the first trimester is no. The state's police power has been restricted by the Fourteenth Amendment.
There is of course no clear constitutional mandate that during the first trimester, a woman has a right to abort her pregnancy. But it is clear, as Justice Louis Brandeis wrote, that the framers of the constitution intended to establish a broad right of the individual citizen to be left alone by the government. The exact boundary of this freedom was not defined, but there certainly is one. The painful task for the court has been to define what it applies to, and how, what it does not apply to, and why. The painful truth for those who wish to intrude on every aspect of other people's lives? Simply this: that all levels of government are constitutionally denied such sweeping powers.
The hierarchy of the Roman church faces a similar obstacle. The princes of the church want their own edicts to be the law of every land in the world. Again, this is contrary to the fundamental law of the United States. We fought a revolution against the rule of princes. Our government is constitutionally denied the authority to intervene, in matters the Roman church would very much like to intrude upon. Therefore, the machinery of government, in this nation, is unavailable to fulfill the wishes of the bishops. No justice of the Supreme Court, including those professing and practicing the Roman Catholic faith, have ever found a legal basis to comply with the wishes of the hierarchy. Every immigrant adhering to this faith, when they became a citizen of the United States, took an oath giving their undivided civic allegiance to the Constitution of the United States. This is part of the heritage they have bequeathed to their descendants, citizens of this nation by birth. The princes of the church may issue their commands to any person who freely and voluntarily chooses to obey. They may not, however, blackmail members of their church who hold public office, or intrude on the secret ballot of individual church members.
That the federal constitution should protect individual citizens and families against abuse of power by state governments is not new. James Madison sought such protections as part of the original Bill of Rights, but they were not adopted at that time. Less than 100 years after the ratification of the Constitution, the nation it created was split by a civil war. The wisdom of Madison's proposal was recognized as a necessity in putting the nation back together. Since adoption of the Fourteenth Amendment, the states as well as the federal government are denied authority to abridge the privileges or immunities of citizens of the United States.
There is an Axis of Evil that would like to abridge the privileges and immunities of citizens of the United States. They would like to use the machinery of state and local governments to impose their own dictatorship on any district where they can seize control. They are frustrated that the Constitution of the United States will not allow this. They are the people Madison warned us against in The Federalist Papers, when he wrote that "enlightened statesmen will not always be at the helm." Madison and Alexander Hamilton were both very explicit that it is the role of the judiciary to restrain the legislature when it exceeds its proper authority. Hamilton wrote that it is the duty of the courts of justice "to declare all acts contrary to the manifest tenor of the constitution void."
That is why no president, no new appointements, no lobbying by the avowed enemies of American liberty in our midst, have ever succeeded in swaying the court to their own perverse agenda.