The Supreme Court: Procedure, Precedent and Giving the Devil His Due

This is a copy of an article I wrote for Townhall.com

Over the past few weeks, the United States Supreme Court has dominated the news, displaced only by Cindy Sheehan’s Cirque du Crawford, and the devastation wrought by Hurricane Katrina. Justice Sandra Day O’Connor’s impending retirement, and former Chief Justice Rehnquist’s recent passing from thyroid cancer have politicians and pundits of all political stripes obsessing over the best replacements for them.

John Roberts – who President Bush named first as O’Connor’s replacement, and now Rehnquist’s -- will begin his hearings before the U.S. Senate this week. In a climate fraught with hyperbole and accusation, it is worthwhile to revisit the question of what, precisely, the United States Supreme Court should be doing. And what, precisely, conservatives should be looking for in a Supreme Court Justice.

Unfortunately, liberals and conservatives both obscure the issue.

Liberals want a Justice who supports their pet causes: affirmative action, taxation, expanding government. But let’s face it – the Holy Grail of Supreme Court jurisprudence for the Left is abortion. They want someone who is pro-choice and unwilling to overturn Roe v.Wade.

Similarly (although there is more disagreement on the abortion issue among Republicans than Democrats), conservative Republicans want a pro-life Justice who is also sympathetic to business, opposed to increases in taxation, and willing to rein in government expansion.

The purpose of all of the vetting, and of the hearings themselves, is no longer to establish the nominee’s professional qualifications. It is to try to pry out his or her political leanings, in the hopes that he or she will “vote the way we want.”

That’s perfectly appropriate for candidates for public office. And utterly beside the point for a Supreme Court justice.

(I’ll pause here, while the conservatives reading this sputter, choke, and spit out their coffee.)

Conservative writers pay lip service to the idea that Supreme Court justices are not placed on the bench to implement their personal views. True. But what most non-lawyers don’t realize (and what many politicians try to ignore) is that it is not the role of the Supreme Court to resolve individual disputes.

In essence, the United States Supreme Court is more a forum of procedural than of substantive law. The Court’s role is to interpret law – both case law and statutory law – to determine if it is consistent with Constitutional permissions and limits. If any law so challenged does not defy the U.S. Constitution, then it must stand – despite whatever the individual justices may think of it.

That’s fine as far as it goes. But the other purpose of the Court is to provide consistent precedent for the lower courts – both federal and state – to follow. To be concerned with procedural consistency and precedent means not only that the justices’ personal views on what substantive law ought to be are moot. It also means that the decisions handed down by the Supreme Court establish clear rules that are easily understood and followed by the lower courts.

Scalia understands this. Thomas understands this. Rehnquist understood it. O’Connor did not. And this is where she - and indeed much of the U.S. Supreme Court jurisprudence over the past twenty years (especially where O’Connor was the “swing vote” in 5-4 decisions) – has failed miserably.

Ashcroft v. Raich (later Gonzales v. Raich) is a good example. That case challenged the Justice Department’s right to criminalize the medical use of marijuana, despite California’s statute explicitly permitting it. The case turned on Congress’ power under the Commerce Clause.

Many were surprised that Scalia – an open advocate of limited federal government and states’ rights – voted with the majority in holding that Congress did, in fact, have the power to regulate purely in-state medical use of marijuana. But Scalia’s concurring opinion makes clear that, despite whatever his personal views on medical marijuana might be, fifty years of Supreme Court precedent states clearly that the Commerce Clause does extend to such use. Although he might think it should be otherwise, that would require explicitly overturning half a century of Supreme Court precedent, which he knew the majority was unwilling to do.

Justice Clarence Thomas dissented. But, as with Scalia, Thomas recognized that the Commerce Clause had been interpreted to extend to this sort of in-state production and consumption of commodities like marijuana. Thomas’ dissent addressed the reasons why the Supreme Court’s fifty years of precedent on this issue ought to be overturned as being inconsistent with the original intent of the Clause.

O’Connor, in typical fashion, did neither. She did dissent. But while she acknowledged that the Supreme Court’s earlier decisions supported a broad interpretation of the Commerce Clause, she nevertheless attempted in her dissent to carve out a very narrow, fact-dependent exception. The problems with her legal reasoning in Raich are too complex to go into here, but suffice it to say that her interpretation of the Commerce Clause, and the line of earlier Supreme Court cases interpreting it, would leave legal scholars, state legislators and lower courts scratching their heads.

O’Connor has often been praised for her “nuance.” For conservative legal scholars, this is a synonym for “mishmash.” O’Connor has a deep sense of justice and fairness, and a profound desire to produce what she views as the “right” result in any particular case. But this motivation, however admirable, is better suited to an arbitrator than a Supreme Court justice. O’Connor’s impulses produced jurisprudence that is inconsistent, complicated, completely fact-dependent, and thus impossible to follow. The result is that, while a case that makes it up to the Supreme Court is decided, hundreds and thousands of similar cases in lower courts will still thereafter have to be litigated, to the extent that their facts differ oh-so-slightly.

Some states’ rights advocates and Libertarians were horrified by Scalia’s “betrayal” of the cause. But this is precisely what conservatives should wish for in a Supreme Court justice. If a law is not inconsistent with the Constitution, then it must stand. Opponents must resort to the legislature to change the law. And if Supreme Court precedent is itself in contravention of the proper understanding of the Constitution, then the precedent must be overturned – not endlessly distinguished on factual minutiae. And overturning Supreme Court precedent is not something that a conservative Justice would do lightly.

Conservatives need to remember this, as they dissect what they think, hope or fear are John Roberts’ – or any other nominee’s -- views. This is not to say that cases like Raich or Roe v. Wade ought not be overturned. I personally think that the Supreme Court has been wrong for fifty years about the Commerce Clause. And regardless of what you think about the morality of Roe v. Wade, it is a horribly reasoned decision, its arguments unsubstantiated, and its jurisprudence vacuous. But at the level of the United States Supreme Court, it is the procedural integrity that must be preserved. If conservatives are willing to dispense with proper judicial process in order to obtain the substantive result they want, they will end up with neither – as we are discovering now. It is the process that protects us.

There is compelling historical precedent for this. Roberts, a Roman Catholic, no doubt knows that Sir Thomas More is considered to be the patron saint of Catholic lawyers. His story is related in Robert Bolt’s screenplay, A Man for All Seasons.

More was the highest ranking officer of the law in England under King Henry VIII. Henry, a Catholic, sought to divorce his first wife, Catherine of Aragon, who had borne him six daughters but no sons, in order to marry his mistress, Anne Boleyn. The king’s sycophants and yes-men – many of whom resented More – wanted More to declare the king’s second marriage lawful. More’s own family, devout Catholics, insisted that he denounced Henry’s actions as immoral.

More, highly principled, but also pragmatic, sought a different alternative. His job, as he saw it, was to enforce the existing law – not his or anyone else’s view of morality. In the following exchange, More parlays with his wife Alice, his daughter Margaret, and his excessively zealous son-in-law, William Roper.

Margaret More: Father, that man's bad.
Sir Thomas More: There's no law against that.
William Roper: There is: God's law.
Sir Thomas More: Then God can arrest him.
Roper: Sophistication upon sophistication.
Sir Thomas More: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.
Roper: Then you set man's law above God's!
Sir Thomas More: No, far below; but let me draw your attention to a fact - I'm not God …
Alice More: While you talk, he's gone!
Sir Thomas More: And go he should, if he was the Devil himself, until he broke the law!
Roper: So now you'd give the Devil benefit of law!
Sir Thomas More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

In the end More is tried and executed for treason, not because he denounces the king’s second marriage (he says nothing, in fact), but on the perjured testimony of another man.

There is a lesson for Roberts here: that political men often loathe principled ones, and would rather see them destroyed than enjoy the benefit of their counsel. If Roberts is the principled man and practical jurist his supporters claim, he risks inciting the wrath not only of the Democrats who will oppose him because he does not share their views, but also of those on the Right who don’t mind taking pages from the Left’s playbook if it means they get what they want.

But the larger lesson is for conservatives: if they truly want a Supreme Court Justice who understands his role, who respects legal procedure, and who reads his or her script by the light of the United States Constitution, then they must accept that Roberts, like More, will enforce the law – not rewrite it to conform to his personal views. Liberals deliberately ignore this. Conservatives must not, even if it means that, at times, Chief Justice Robert’s votes will not please them.

Hurricane Katrina and the Second Amendment

Much has already been said about the dismal response of local, state and federal authorities in the wake of Hurricane Katrina, and the terrible suffering that tens of thousands of people are enduring as a result. I don't intend to add to that thread. Instead, what has struck me about this disaster is that it has demonstrated what Second Amendment defenders have been saying for years:

The government and the police cannot protect you.

Reliance on government and police power is the standard line of so-called "gun control" enthusiasts. This is a lie even under the best of circumstances. (Here's a link to a site with some excellent information on the subject.)

But post-Hurricane Katrina New Orleans proves that when the most basic infrastructure - i.e., government - is gone, you'd better have a way to protect and defend yourself, your loved ones, and your property, because otherwise, you'll just be a statistic.

The armed lowlifes that are preying on the sick, the weak, the homeless and isolated are not even deterred by common decency in the face of widespread suffering. They thrive on chaos. They are firing at police, at National Guardsmen, at rescue helicopters, at food and relief vehicles, at the hundreds of ordinary folk who showed up in their own boats to help transport victims. Does anyone seriously think that these creeps will pay attention to gun control laws?

Of course not.

I have family and friends in New Orleans, and they are all saying the same thing: The media is not telling you how bad it really is down here. And they are not referring to the heat, the lack of basic services, the fetid water, the corpses floating in it, and the alligators. (Although I don't think the media is talking about the alligators much, either.)

They are talking about the armed gangs - the would-be looters, rapists and murders who have come out in the dark like roaches in the absence of police, electricity, and alarms. New Orleans has become a third-world country. Ordinary folk have taken to defending their homes and neighborhoods with guns. In sections of New Orleans and the surrounding suburbs where the flooding has not been as bad, residents have stayed in or returned to their homes and posted signs on them: You loot - we shoot. And they do. Stories like the one Mona Charen recounts are popping up everywhere. Can you imagine what it would be like if the citizens of New Orleans could not defend themselves?

Watching this unfold, I could not help but think -- If Osama bin Laden and his cronies are smart - and I think they are - they are saying to themselves, "We don't need to destroy their country. We just need to knock out a few basic city services. And then we can just sit back and watch while they destroy themselves."

Gun control advocates - wake up. And those of you who believe that there is a reason the Second Amendment protects citizens' right to bear arms, you'd better speak up. As New Orleans goes, so goes the rest of the nation.

Science, the pursuit of truth, and humility

There have been a number of news articles recently that demonstrate, in my view, the relationship between science, humility in the pursuit of truth, and some religious beliefs.

The first is the recent article about fetal pain in the Journal of the American Medical Association which has caused such a commotion. In it, the authors claim that the unborn child cannot feel pain until at least seven months' gestation or so. But some researchers hotly dispute these conclusions. And many are questioning the authors' conclusions - and their biases - by virtue of their connections to abortion-rights organizations. (One of the co-authors actually owns an abortion clinic in San Francisco.)

Have these writers' scholarship methods been compromised by their views? An interesting question. But it's not the one I am addressing here.

What struck me about the position taken in this article was not only that it was counterintuitive, but that it reinforced how wrong SCIENCE has been about the developing infant - both in and out of the womb. And this is where two other recent articles make that point even more effectively.

Just a few days after the JAMA article was released, another study was published in the journal, Archives of Disease in Childhood - Fetal and Neonatal Edition which argues that unborn children actually cry in the womb. Information about the article can be found here. And here is the link to the actual ultrasound footage showing the fetus crying. (As the mother of a six-week-old infant, I was astonished at this footage, which shows a child doing exactly what my baby daughter does when she cries.) This study made headlines, because everyone believed that babies did not cry in the womb.

According to one article, New Zealand pediatrician Ed Mitchell, who contributed to the study, was quoted as saying, "We actually still do things to babies without anaesthesia. Maybe this is a wake-up call to obstetricians and neonatologists."

Duh. If you need further proof that science is often wrong in this area, you need only read the recent article in the August 8th issue of Newsweek magazine entitled, "Your Baby's Brain." In the feature article, the authors describe an experiment in which infants just a few months old exhibit jealous behavior when confronted with their mothers holding dolls. The researchers were shocked to see that infants could feel jealousy; this was not the prevailing medical view. A quote from the article:

"A wealth of new research is leading pediatricians and child psychologists to rethink their long-held beliefs about the emotional and intellectual abilities of even very young babies."

It was not always so. Thus:

"It was a notion that held for nearly a century: infants were simple-minded creatures who merely mimicked those around them and grasped only the most basic emotions—happy, sad, angry. Science is now giving us a much different picture of what goes on inside their hearts and heads. Long before they form their first words or attempt the feat of sitting up, they are already mastering complex emotions—jealousy, empathy, frustration—that were once thought to be learned much later in toddlerhood."

You can read the article to find out more. Jealousy, empathy, object permanence - all things that science now understands babies can feel. But scientists did not always believe this.

And so it was for pain, as well. Until relatively recently, doctors did not believe that newborn infants were sensitive to pain, either. So little boys who were circumcised were not given anaesthesia.

This seems asinine to me, and always has. Anyone who has had any dealings with babies knows that they feel pain. (What was all that screaming about when you cut the foreskin, then? Wounded pride? Please!) And fear, and jealousy, and sympathy. It is only when one is blinded by science that one could hold such obviously untenable views. Scientists who made those early claims remind me of the villagers who all agreed that the naked Emperor had a beautiful new suit of clothing - despite what their own eyes told them - because everyone else said so.

An anecdote. I was a freshman in college when my youngest brother was born. (Late babies are a tradition in our family!) In my sophomore year, I took a Child Psychology course. My little brother was about 9 months old at the time. It was fascinating to me, because I had firsthand knowledge of what the books, the professor, the "experts" were talking about, in terms of child development - and they were all wrong. My baby brother could do things and exhibit skills and feelings and behaviors well before what the "experts" said. And while I know my brother was a bright child, and children advance at difference paces, I remember distinctly that the timetables the scholarly literature presented were so off-base that they were utterly discredited for me.

Now here we are - some 25 years later - and gee whiz, science has finally caught up with what an adolescent older sister (and parents everywhere) could see without an experiment, a study, or a doctorate.

Here's my point: Judeo-Christian religious belief and traditional morality tell us that the unborn child - like human beings at all stages of life - is a human being of inestimable value. Today there are those who would use science to try to demonstrate this this isn't true; that the unborn child, the neonate, the infant, the disabled, the elderly, are all somehow "less" human, because they don't feel, perceive, sense, convey things the way "we" (presumably adult, fully-functioning and sentient human beings) do.

There are any number of things wrong with this approach. One can certainly make the moral argument (too long to go into on this particular post) that it shouldn't matter, from the standpoint of worth and value, what the human being's stage of development or capacity is.

But - because I am interested in the places where religious belief is supported by scientific proof - what's critical to me is the fact that the "scientists" are often wrong. They were wrong about infant pain. They were wrong about infant cognition and development. And - I have no doubt - they are wrong in their assessment that a child in the fetal stage of development feels no pain. In other words, even if one were to accept the premise (which I don't) that sentience is a prerequisite for human worth and value, then it is interesting that more recent scientific proof seems to shore up the belief that the unborn - as well as newborns and older infants - feel and understand a good deal more than conventional scientific wisdom believed.

A little humility, then, in the pursuit of scientific truth, would seem to be a good thing. And although a belief in Something Greater is by no means a guaranty of humility (as many humble atheists can attest), it is often a good place to start.