The Jury is Still Out on John Roberts and Other Court Thoughts

Perhaps out of relief that President Bush did not nominate someone like Attorney General Alberto Gonzales, conservatives throughout the country seem to be in a state of euphoria over the nomination of John Roberts to the Supreme Court. Alas, celebration to me, at this point, seems premature.

Those who hope to overturn Roe v. Wade have latched onto a legal brief Roberts signed off on as a member of George H. W. Bush's Administration to argue that the pro-life movement should throw their lot in behind the nomination. However, during his confirmation hearing before the Senate Judiciary Committee in 2003, Roberts dutifully pledged to uphold the Roe precedent saying, "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." In light of this evidence, my friend Aakash Raut, prudently argues for conservatives to proceed with caution:

Whoa there - Let's slow down, guys...

The thing is, I don't recall having heard of Judge Roberts before tonight. And I know I'm not the only one... Many of his positions are unknown, especially since he doesn't have very many of his views on the official record. He did inveigh against Roe, but only as a representative of his then-client, the Bush 41 administration. Same goes for his filing in favor of the Playboy Channel's First Amendment "rights." I just saw the interim president of Planned Parenthood on Scarborough Country, who said: "This may surprise you, but we're [not taking a position on Roberts]"... They just don't know enough about him. Neither do we.

I think that conservatives need to be very careful before getting excited about this nominee... And we have to be wary of basing our reactions to his nomination upon the fact that liberals will be opposing him.

Despite the intense protest coming from the likes of the National Abortion Rights Action League, raising the specter of Roberts joining a Court majority that would overturn Roe, all evidence points to that decision remaining a staple of American law for many years to come. Assuming - and that is a very large and completely unsubstantiated assumption at this point - that Roberts would vote to overturn Roe, a 5-4 pro-Roe majority consisting of Justices Ginsburg, Stevens, Souter, Kennedy, and Breyer would still reign.

Perhaps the most disturbing aspect of the entire controversy surrounding the Court is how accepted the philosophy of judicial supremacy has become in American politics. Specifically, I'm referring to the concept - popular on the right and left - of appealing to the Court as the highest authority in the land on Constitutional issues. Want to strike a blow for the pro-life movement? Do you oppose affirmative action? How do you feel about the use of medical marijuana? All you have to do is get the right people on the Supreme Court to have your political views imposed on the entire country.

For more than thirty years now, conservatives have adopted a strategy of "capturing the Court" to rescind the advances of a cultural revolution hostile to traditional morality and the Christian religion in particular. They have marched hand-in-hand with the Republican Party, donated large amounts of time and money to the partisan cause, and urged the election of GOP presidents in the hope overturning decisions like Roe. What has it gotten them? A Court - 7 of 9 justices of which were appointed by Republicans - that rules in favor of race preferences in the name of "diversity," overturns state sodomy laws, and is generally deferential to federal power.

"American conservatism is a failure," wrote the late Dr. Sam Francis in his 1993 book Beautiful Losers. "Virtually every cause to which conservatives have attached themselves for the past three generations has been lost, and the tide of political and cultural is not likely to anytime soon." Twelve years hence, it is difficult to look back and not agree with Dr. Francis' assessment. One of the biggest reasons for this failure - particularly the failure of cultural conservatives - is the Court takeover strategy.

The startling fact is that Congress, under Article III Section 2 of the Constitution, has the power to overturn Roe v. Wade by simply asserting its authority to limit the appellate jurisdiction of the Supreme Court. This would, in effect, return the issue of abortion to where it was decided from the founding of the country to 1973 - to the people of the several states. Adopting a strategy of persuading the Congress to exercise this power would be infinitely more wise and efficient than playing the Supreme Court game.