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Expanding Rights vs. Protecting Rights

Why the judicial branch should not be deciding our culture wars.

12:00 AM, Sep 19, 2005 • By DAVEED GARTENSTEIN-ROSS
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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: