Judicial Labels & Roe v. Wade

What has emerged in recent history is that the Supreme Court has become a forum for implementing brazenly political agendas of liberal social engineering. That is why today, empirically and honestly speaking, it is clear that the Supreme Court is nothing more than a politicized committee that produces incoherent judicial decisions as its end product. The ideal is, rather, for a Supreme Court in which the high caliber of justices means that each justice follows a consistent judicial philosophy rooted in deference to the legislative branch, except in cases where clear fundamental, constitutional rights are threatened.

Such a consistent judicial philosophy, rooted in a democratic understanding of courts as institutions that must defer whenever possible to democratic legislatures, would abandon any efforts at liberal social engineering, whether the scheme is to make abortion-on-demand a nationwide convention or to remake marriage into something utterly unrecognizable.

But that is a tall order. The level of mediocrity on the Supreme Court means that many recent justices have no sane judicial philosophy to speak of--rather the mediocre have just lurched from issue to issue under the all-purpose legal fig leaf that they are just adjusting to different facts. The real fact is that judicial philosophy determines which facts are decisive. Raw facts in themselves don't determine legal results because there are in fact no "raw facts" in the law: all facts must be weighed using a sane judicial philosophy, much as jurors are given detailed legal instructions to guide their deliberations. As odd as it may appear, we may need somebody to give legal instructions to the Supreme Court before they themselves begin to deliberate. In recent years, many of the justices have proven unable to find the law.

So what kind of judicial philosophy is needed? Sunday's N.Y. Times' Week in Review section carried an analytical article summarizing the various schools of conservative judicial philosophy. It is interesting that the debate is within conservative circles. There is no coherent liberal judicial philosophy around to analyze. Liberal judicial philosophy is merely to codify the latest trend in political correctness, regardless of election results.

Here are the "shades" of conservative judicial philosophies discussed in the article, with their apparent proponents in parentheses. First, there are the "originalist conservatives" who emphasize a strict constitutional interpretation based on divining the original intent of those who gave us the Constitution (Justice Scalia). Second, we have the "libertarian conservatives" who emphasize economic liberty and are "consistently anti-government and pro-individual liberties" (Justice Clarence Thomas).

Third, we have traditionalist conservatives who reject radical departures "in any direction from the Constitution as it has been interpreted in case law over the ages" (the late Justice John Marshall Harlan). A true traditionalist conservative would never have agreed to the radical Roe v. Wade decision. Next, we have so-called pragmatic conservatives who focus on helping government institutions "function smoothly" and look to "empirical evidence about the effects of their decisions in everyday life" (retiring Justice O'Connor). Finally, we have deferential conservatives who believe that "courts should play a very limited role in American politics and should rarely, if ever, strike down laws passed by state legislatures and Congress" (the late Justice Felix Frankfurter).

Of course, this scheme is simplistic; and some of the justices would surely disagree with how they are described. In addition, some of the pigeon-holed justices would likely view their own philosophy as really a mix of the above schools of thought. But analysis always begins with an attempt at intelligent simplification of reality. So let us begin: what form of conservative judicial philosophy makes the most sense?

Originalist conservatives, in my view, tend to overemphasize one aspect of the judicial process. If the Constitution is a living document, it is undeniable that there must be development, much as we Catholics recognize development in theology. Libertarian conservatism also seems to overemphasize one aspect, individualism, at the expense of the reality that we are social animals who cannot thrive apart from community. Catholics call it communion or communio.

Traditionalist conservatives, defined as those very deferential to precedent, seem merely to repeat what should always be a principle of Anglo-American judicial decision-making: respect precedence and reason by example. If that is all there is to a traditionalist conservative approach, it is not a lot. Pragmatic conservatism seems to be no more than a pro-government stance.

My favorite judicial philosophy and the one that is, according to the article, least popular today, is deferential conservatism. Deferential conservatism accords with the great reality that we are a democracy and not an oligarchy. Deferential conservatism also meshes well with the Catholic common-sense principle of subsidiarity: as much as possible, leave decision-making in the hands of those decision-makers closest to the actual events and the people affected by those actual events. In this context, subsidiarity means, in general, that state legislators are better decision-makers than Congressmen, and that both state legislators and Congressmen who are focused on the needs of their constituents are better decision-makers than aloof judges, whether state or federal.

Deferential conservatism leaves the way open for resolving contentious issues through democratic politics. While most, if not all, of the shades of judicial conservatism described above would never have supported Roe v. Wade, it is a sure thing that a true deferential conservative would never have backed Roe v. Wade or back today the current judicial crusade in some states for transforming marriage. More importantly, a deferential conservative as Supreme Court justice would be adamant about correcting the radical usurpation of power by the Supreme Court in Roe v. Wade. The priority for a true deferential conservative would be to reverse Roe v. Wade. The famous Roman orator Cato (234-149 B.C.) always ended his speeches with the ringing declaration that Carthage must be destroyed: "Delenda est Carthago." Roe v. Wade must be reversed and destroyed.