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Expanding Rights vs. Protecting Rights
Why the judicial branch should not be deciding our culture wars.
by Daveed Gartenstein-Ross
Weekly Standard 
09/19/2005 12:00:00 AM

JUDGE JOHN ROBERTS'S Senate confirmation hearings last week were only the opening salvo in a broader war over the future of the Supreme Court. Most observers expect Justice O'Connor's replacement to generate far more contention than Judge Roberts did, since that nominee could substantially change the Court's ideological composition. As the war for the Supreme Court heats up, it's important for conservatives to understand why the nominations matter. Many conservatives have seized on issues where the Court has played, or might play, a decisive role--such as abortion, gay marriage, or the separation between church and state. While these issues are important, they're only part of a broader trend: The left has been fighting the culture wars through the courts for more than three decades. Its agenda has been advanced not through sound legal reasoning, but through political philosophy masquerading as constitutional interpretation. Unless conservative jurists can change our country's legal trajectory, the left may win the culture wars through clever use of the least democratic branch of government.

While the left agrees that the culture wars are being fought through the courts, its portrayal of how this is occurring clashes with reality. For example, an editorial in the September 19 issue of the Nation claims that Judge Roberts "has established a twenty-five-year track record as foot soldier in a legal revolution profoundly destructive to the public interest. Indeed, his views are among the most extreme to emanate from a cohort of partisan Republican activists intent on reversing decades of settled policy on civil rights, voting rights, women's rights, privacy rights and access to justice."

The two major misleading portrayals in this passage are that Judge Roberts has been part of a destructive "legal revolution" and that Republican activists have been scrambling to reverse "decades of settled policy." The real legal revolution was led by the Warren Court, which began interjecting the Supreme Court into policy questions in an unprecedented manner. That revolution continues to this day, and the agenda it has advanced is decidedly left of center. And while the Nation can legitimately claim that decisions such as Roe v. Wade have been "settled policy" for decades, that fact, too, is deployed in a misleading way. That the Supreme Court "settled" an issue does not make it good law, and leftist publications are not known for defending policies simply because they're "settled." After all, prior to Lawrence v. Texas it was settled policy that states could constitutionally pass legislation outlawing homosexual sodomy, but the left hardly decried Lawrence.

THE PAST THREE decades provide ample demonstration of how the left has used the courts to advance its social agenda. A large number of opinions by the Supreme Court and the lower courts that have touched on controversial social issues during this period have been based more on the jurists' political philosophies than on a careful examination of the Constitution and a respect for the framers' intentions. In this way, the courts have been busily constitutionalizing a left-liberal agenda.

Many recent cases demonstrate this trend. Lawrence held that states could not outlaw homosexual sodomy, even though the Supreme Court had affirmed the constitutionality of such laws less than two decades earlier in Bowers v. Hardwick. Both the Supreme Court (in decisions such as McCreary County v. ACLU of Kentucky) and lower courts have restricted the permissibility of public displays of religious symbols, the most remarkable instance being the Ninth Circuit's holding that the Pledge of Allegiance was unconstitutional because it contained the phrase "under God." On the state court level, the Massachusetts Supreme Court held that gay couples must be allowed to marry. But Roe v. Wade is the most prominent example of the constitutionalization of a left-liberal agenda. Justice White, in dissent, had the case right when he stated:

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.

Justice White lucidly explains why it's pernicious for the courts to constitutionalize their policy preferences: The act of doing so eliminates the possibility of democratic deliberation. When a constitutional right is not found, on the other hand, that is not the end of the discussion. Rather, the lack of a constitutional right means that the legislatures are free to consider the issue.

This fact explains why the Nation's depiction of Judge Roberts as a "foot soldier . . . intent on reversing decades of settled policy" is inaccurate. Conservative reaction to activist decisions does not amount to an effort to win the culture wars through the courts. Instead, it's an attempt to get back on equal footing, to return highly controversial issues like abortion to the legislative arena.

To be sure, an issue should be removed from the realm of democratic debate when a constitutional right actually exists. But the courts have not been faithfully applying the law through an honest reading of the Constitution and an examination of the relevant history. Instead, they have engaged in political philosophy exercises, where they desperately seek legal justification for their political predispositions.

THE COURTS HAVE EXPANDED the Constitution's reach steadily, and the doctrine of stare decisis (holding that prior decisions must be recognized as precedent) ensures that the legal system will move further in a left-liberal direction. Through stare decisis, lawless decision-making becomes self-reinforcing. This is how, for example, the Supreme Court created abortion rights. The 1965 opinion Griswold v. Connecticut found unconstitutional a Connecticut law prohibiting married couples' use of contraceptives. Griswold is difficult to penetrate; it asserts that the Supreme Court should not be limited by the text and history of the Constitution because "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." Through these "penumbras," Griswold created a constitutional right to privacy that had never been recognized before. Justice Stewart pointed out at the time that the right to privacy could be found nowhere in the Constitution:

What provision of the Constitution, then, does make this state law invalid? The Court says it is the right of privacy "created by several fundamental constitutional guarantees." With all deference, I can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.

Yet, less than a decade later, that lawless opinion blossomed into Roe v. Wade. The Court constitutionalized the right to an abortion based not on the text and history of the Constitution, but instead on Griswold's highly questionable "right to privacy." Thus, stare decisis lets courts move further and further from the Constitution's text and traditions.

LIBERALS HAVE A CLEAR VISION for the Constitution, one in which unelected judges are expected to expand our pool of "rights," regardless of how shaky the footing. Conservatives have a competing vision in which courts enforce those rights that can be found in the Constitution's text and history or which are provided statutorily, and do not engage in political philosophy. In the conservative vision, policy debate is reserved for democratically-elected officials.

While Judge Roberts has been derided as an extremist, the real judicial extremism is liberal jurists' tendency to over-constitutionalize society's problems. If someone had warned right after Griswold that the newly-created right to privacy would eventually cause abortion to become a constitutional right, he would have been disregarded as an alarmist. Yet, less than a decade later, that is precisely what happened. This fact should be kept in mind, as should Justice Scalia's Lawrence dissent, in which he wrote:

State laws against bigamy, same-sex marriage, adult incest, prostitution, . . . bestiality, and obscenity are likewise sustainable only in light of [the] validation of laws based on moral choices. Every single one of these laws is called into question by today's decision.

Without more conservatives and originalists on the Court, social issues that were contemplated by neither the text of the Constitution nor the framers will continue to be decided by the least democratic branch of government. Conservatives now have the opportunity to make their stand, and explain why the judiciary is the worst branch to resolve such issues.

Daveed Gartenstein-Ross is an attorney and counterterrorism consultant. He graduated from the New York University School of Law and clerked on the D.C. Circuit Court of Appeals.

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