When President Bush introduced his nominee for Chief Justice of the Supreme Court, John Roberts to the nation in July of 2005, Bush said, “When a president chooses a justice, he’s placing in human hands the authority and majesty of the law.”
The U.S. Constitution, as considered and dissected as it is, is a written trust that must be wisely interpreted and scrupulously maintained by each generation. That it has managed to survive the continual attacks of tyranny, pragmatism, and opportunism and has actually expanded freedoms rather than retract them is nothing short of miraculous. While we all hold a stake in this document’s survival, its survival depends on the set of nine trustees who sit on the United States Supreme Court. With the swipe of their pens, these justices are empowered to change this nation drastically. At their best, they reflect the idealism of the founders of this nation, and at their worst, can provide justification for tyranny.
U.S. President Calvin Coolidge understood the importance of the Constitution when he said in 1924 that “The Constitution is the sole source and guaranty of national freedom.” Yet, its interpretation falls to a collection of nine people who cannot help but bring their personalities, characters, and ideas to the bench. Their decisions are taken as the final word unless they later find a way to change their minds gracefully. As the poet Robert Frost observed, “Isn’t it funny that anything the Supreme Court says is right?”
Because decisions are permanent and appointments are lifetime, the selection of a Supreme Court justice cannot be taken lightly, nor should it be “rubber stamped” by a compliant legislature. Its contemplation must contain the anticipated angst of future decades, and the humility of one standing on the shores of an unimaginable future, for the very future of this nation depends upon this selection.
Recently retired Justice Sandra Day O’Connor understood this responsibility. Since her appointment by President Reagan to the Supreme Court in 1981, she consistently provided centrist opinions closely tailored to the facts of the cases themselves, thus largely avoiding the enticing trap of broad generalizations that harm minorities and create bad legal precedent.
O’Connor emphasized the reasonable separation of church and state and warned that, “It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. But they did know that line-drawing between religions is an enterprise that, once began, has no logical stopping point” (McCreary County v. ACLU, June 2005).
Today, the Supreme Court may be on the verge of a major shift as the Court mourned the death of Chief Justice William Rehnquist and accepted the retirement of Justice Sandra Day O’Connor. Two new individuals, John Roberts and Samuel Alito, Jr. have assumed the difficult and solemn task of safeguarding our liberties.
With the nominations of both Roberts and Alito, Bush chose a candidate with a well-documented legal pedigree. As the Senate considered this candidate, we encouraged Congress to thoroughly review whether or not Alito will be willing to apply the Constitution to each case as it arises rather than take the easy route of applying the prejudices and sentiments of the majority.
While some are troubled by the religion of the nominees, particularly Roberts’ and Alito’s Catholic faith, having an active faith does not disqualify them from serving our nation. What does matter is that they are willing to recognize and honor the rights of those whose faith differs from their own. This requires independent thinking that transcends any religious or political boundaries. In short, they must be willing, if necessary, to decide against the interests of those who appoint them.
Whether Alito is confirmed or not, whoever takes O’Connor’s place will come face to face with the building pressure for the Court to redefine what privacy rights, executive power, public morality, and religious liberty will mean in the coming years. And the trends are not encouraging.
In recent years, the Court, in the name of pragmatism, has eroded the Constitutional protections that we used to depend upon to protect free exercise of religion (Employment Division v. Smith, 494 U.S. 872, 1990). O’Connor understood the dangers when she wrote in her dissent to Smith that “The First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah’s Witnesses and the Amish.”
Many in the evangelical Christian community who sense that the moral framework of this nation is disintegrating have demanded that this nation “return” to the Christian roots of the founders and thus effectively abandon the intent of the Establishment Clause. They believe that evangelical Christianity should be favored by the courts and that when the rights of religious minorities are equally defended, it waters down the “foundation” of this nation. They have demanded limits to the expression of other religious beliefs while promoting a “majority” “civic religion” (Simpson v. Chesterfield County, April 2005, 4th Cir.).
At this writing, the majesty and authority of the law is being placed in new hands. Let us pray that these new Justices will be granted the wisdom of Solomon as they chart the future of this nation.