It is not the court's job to do justice. It is the courts job to apply law. But you may ask what if the law is a immoral? My answer is that the courts have no right to strike it down. Once you allow them to do that you've given judges absolute power to decide what is right and wrong, and when that happens you and I become utterly without defense.
Trying to unscramble the rationale of court decisions now-a-days is an exercise in frustration. How does one make sense of all the legalese and the opinions of the army of pundits that parade across our screen on the evening news?
In the absence of a well developed understanding of how the judicial process works we are, more often then not, inclined to follow our moral instincts in judging the ruling of the courts. We try to think of what reflects our own moral code, our own understanding of right and wrong. Then we try to address the court's decision on that basis. But this sets us up for making a serious error. That error is arguing morally rather than legally on the issues before the Court.
Let me give you an example. A few weeks ago the Supreme Court handed down a decision on the Pennsylvania case, Casey vs. Planned Parenthood . Two senatorial candidates from this state were given an opportunity on local radio to comment on the High Court's ruling, first Democrat Barbara Boxer and then Republican Bruce Herschenson .
After Boxer had made her comments and departed, Herschenson made an interesting observation. He observed that his opponent had not made one comment about the Constitution. Instead she commented on the ideological issues the Court addressed. This was a profound error, he noted, because a Supreme Court judgment has one purpose and one purpose only, to adjudicate the Constitution, to render a judgment, to resolve a disputation. How do they do that? Not by deciding what is good, or what is right or what is fair. In other words, to render a judgment, to resolve a disputation between the law in the ruling of the lower court, on the one hand, and on the other, the law in the Constitution of the United States. It is their job to determine whether the law, in this case the Constitution, has been violated. That's all. That's it. End of issue.
As Herschenson pointed out, it doesn't matter really what any individual justice thinks about the issue, in this case abortion. It only matters what the Constitution says. That's what the Supreme Court is all about. That's what any court really is all about. It adjudicates the law as written.
When Randall Terry said that these judges in the Casey ruling let "us" down--the Christians, the conservatives, the pro-life contingent, whoever--he implied there was an ideology they were meant to represent, a loyalty that they had apparently abandoned. But this kind of thinking is very dangerous. Even though I agree with Randall Terry's general position on the morality of abortion, I disagree with the way he responded to the court.
I'm looking at an underlying current here, actually not underlying anymore, it's an overlying current that is very dangerous. This dangerous pattern is something that both liberals and conservatives are victimized by. To put it simply, when we address issues of the Court, if we start arguing with the Court's decision on a moral basis as opposed to a legal basis, we fall into the same trap.
Let me illustrate this for a minute because I realize some who are listening are going to think that the kind of thing that I'm saying now is completely contrary and opposite to the kind of thing that I've said for the last two and a half years on the air. Certainly, we do reason moralistically in the marketplace. The question really that I'm addressing is whether it's appropriate to reason that way in the courts. Or does the court have a particular job and is that job limited and is it limited for a purpose? I would argue they have a particular job. It is a very limited job. It is limited for a very good purpose and that limitation protects you and I from tyranny.
Judge Bork recalls the story of two of the greatest figures in our law, Justice Holmes and Judge Learned Hand. As they were departing after having shared lunch together Hand, in a moment of effervescence and enthusiasm, raised his voice after the retreating Holmes in a final salutation, "Do justice, sir, do justice." Holmes stopped the carriage and corrected him. "That is not my job," he said. "It is my job to apply the law." [Bork, Robert H., The Tempting of America--The Political Seduction of the Law , (New York: Touchstone, 1990), p. 6.]
Let that sink in a moment. It is not the court's job to do justice. It is the courts job to apply law.
But you may ask what if the law is a immoral? My answer is that the courts have no right to strike it down. Once you allow them to do that you've given judges absolute power to decide what is right and wrong, and when that happens you and I become utterly without defense.
Here's what I mean. There is a movie you all should see for a number of reasons, not the least of which has to do with the comments that are made in the film about this issue. But you'll have to go to the "Classics" section of the video store because precious little work has been produced in the past three decades that approaches the moral and intellectual magnitude of this film. The movie is called "A Man for All Seasons." Paul Scofield plays the lead as Sir Thomas Moore, Chancellor of England under Henry the VIII who was executed rather than surrender the leadership of the church to the King. He was a man of tremendous mental acumen, a fine legal mind, a great Christian, a martyr.
This issue of the law that we're discussing came up in the film. When Roper, the somewhat self-righteous suitor of Moore's daughter, asked Moore if he'd even give the devil the benefit of law, he said, "Yes. What would you do, cut a great road through the law to get after the devil."
"Yes," Roper replied, "I'd cut down every law in England to do that."
Sir Thomas Moore responded, "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 is planted thick with laws from coast to coast--man's laws, not God's--and if you cut them down...do you really think you could stand upright in the winds that would blow then? Yes, I give the benefit of law, for my own safety's sake."
You see, the danger today is that this principle has largely been abandoned. The law, the Constitution, is less and less something particular that can offer an unchanging standard. Instead revisionist judges see the Constitution as a "living document," changing from generation to generation, and therefore they can ignore the original intent of the framers. In one sense, as Moore put it, the laws are going flat and the winds are beginning to blow. But, I contend, it is only the original intent that can protect us from judicial tyranny.
Now let's talk just a minute about balance of power because this is really what's at issue here. This is the protective element that keeps us from being tyrannized by any segment of the government. It is the elected official's job to pass just laws. It's their job because they have accountability to the electorate. Judges, on the other hand, are only accountable to the law. They are not accountable to the electorate. They are not to be swayed by public opinion. For balance to work, they must be accountable to the law. That's the problem with judges legislating from the bench. There are no controls. Instead of sticking to the Constitution, today's revisionist judges are adjudicating on that which is not law. When they do that, they have both feet planted, as Dr. Francis Schaeffer said, in midair. This does not produce any kind of civil stability.
This introduces the whole problem with the so-called "litmus test." The litmus test refers to a particular ideological profile a justice must have before he can be approved. The expectation is that if a judge has a particular ideology--and therefore passes the test--then his decisions will reflect that ideology.
This is a profound error. The litmus test qualifies potential judges in an inappropriate way.
I have to confess, when I first heard that President Bush claimed he never discussed the abortion issue with any of his nominees I found it hard to believe. But now I understand why that wasn't necessary. Bush was concerned with judicial philosophy--as he should have been--and not with ideology. The teaching that a woman has a fundamental right to an abortion is not in the Constitution; it was the creation of a liberal court legislating personal ideology from the bench. Seating pro-life judges in the court only compounds the problem of bringing ideological battles into the courtroom.
There is another way to resolve this issue. Bush knew that a judge with a conservative view of law --not necessarily a conservative view of the issues--would solve the problem. If you let the Constitution be what it was meant to be and let the Court function the way it was meant to function, Roe would be overturned because judges that are not revisionists but are committed to original intent will not find a right to abortion in the Constitution because it's just not there. Strict constructionists will not read into the Constitution something that's not there. This frightens liberals.
This is precisely why conservatives don't need a litmus test of their judges and liberals demand one. They demand one because they must get an elitist court to accomplish for them what they have not been able to achieve democratically. And that is tyrannous.
It is not the judge's job to do good. Good is an ideological commodity, more often than not, something that means different things to different people. In a relativistic society plagued by competing moral ideologies it would be the kiss of death to give judges the liberty to adjudicate based on their own conscience.
The reason is there is no protection from elitism. Legislation, by its very design, is protected from elitism. Legislators are elected officials. They have accountability to the electorate. Not so the courts. They have become the breeding ground for elitist doctrines to be forced upon the common man. That is frightening.
This is why I am very uncomfortable with letters addressed to the court that argue on a moral basis. What is there that keeps judges from imposing moral and political agendas of their own that are not found in the Constitution just because they got a lot of letters from people saying they should do so? What protects us from moral relativism in the Court? The Constitution is supposed to protect us. The laws are supposed to protect us. Laws that are passed by a Congress which has accountability. The Congress is the place for agendas; not the Court. Judges should not be concerned with morality or with justice in the broader sense. The only justice they're to be concerned with is justice with the law at hand. Goodness, justice and morality in the larger sense are problems of the legislature, not the Court, because we can get at the legislature. We can't get at the Court. We dare not give them that power.
Our appeal to the Court should not be a moral one but a legal one. If you want to write to the Court, write this: Do the law. Stick with the law. Don't legislate from the bench. Don't do what you think is good and right and true. You do the law. That's your job.
The popular vote protects us from tyranny in the legislative and executive branches. But how do we keep the judicial branch from tyrannizing us? The law. If there is no protection in the law itself written by men and women who are elected by the people and sensitive to the will of the people, if the law is so much silly putty bent and molded by the prevailing ideology--liberal or conservative--a "living document" that takes on a different life for each judge that uses it, then there is nothing to keep judges from being tyrants.
And for those of you who think the word tyrant is a bit much, consider this. With one stroke of the pen in 1856, Judge Taney relegated Dred Scott and the rest of his race to the status of chattel property, without rights and without protection from the law. With one stroke of the pen judges 19 years ago swept 27 million unborn children to date into the grave, children without rights and without protection under the law. And with the same stroke of the pen the severely handicapped, the inconvenient, the helpless ones are one by one beginning to fall into that same abyss.
At least that's the way I see it.