an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Liberals concerned with Judge John Roberts might act on the basis of deeply held Catholic values when deciding whether to overrule Roe v. Wade might consider the virtues of having Judge Roberts act on Catholic values in other areas of the law. The Catholic church, after all, opposes capital punishment, has little good to say about our adventures in Iraq, particularly the torture issue, and is committed to far greater economic redistribution than takes place in the United States. I'm not Catholic (or even Christian), and I gather that there may be a difference in the nature of Catholic opposition to abortion and Catholic opposition to capital punishment. Still, if Judge Roberts took his orders from the Pope, I suspect he might frequently vote differently than he actually does and will.
One interesting question is how both the left and the right would react to a judicial nominee who they believed would overrule Roe, Griswold v. Connection, Lawrence v. Texas, and every decision sustaining capital punishment, as well as provide far greater protection for welfare rights and far stricter judicial supervision of torture than is presently the case. The other point is that Catholocism seems as interpretable as the constitution. Both Roberts and John Kerry and probably sincere Catholics yet they bring very different values to the public sphere (in this light one might note that Frank Murphy and William Brennan, possibly the two most liberal justices of the 20th century were Catholics). Simply saying one is a person of faith, therefore, says no more about one's values that the claim that one will not legislative from the bench. Roberts is not conservative because he is Catholic. Rather, he interprets Catholocism and the constitution in a certain way because he is a conservative. It is those conservative values that need exploring, not his religious faith. Posted
by Mark Graber [link]
Thanks for your post.
I'd like to see more judicious use of the term "conservative." Continuing to refer to corporate pimps like Roberts as 'conservatives' gives them a legitimacy and a mainstream acceptability they do not deserve.
I realize that we're talking semantics here, but IMHO it's a big deal. An entire faux-fascist movement is being built under the guise of conservatism.
Very insightful Peter. Shouldn't you be smashing windows at a WTO summit or making "No Blood For Oil" posters or something? Believe it or not, even corporations are entitled to representation in court.
As to Mark's post, I can't think of a better example of the left's unifying theory of constitutional interpretation, what I call the "We want the cases decided solely in accordance with our ideology and we're not particularly concerned with how that happens, so long as it happens" Theory.
An overtly religious judge would be a "vitrue" to liberals so long as he was helping the court reach the "correct" results, even if he was doing it because of his religion.
If that's not an ends-justifies-the-means argument, then I've never seen one.
Mark, with all due respect, it is a mistake to assume that for Judge Roberts to "act on Catholic values" when acting as a judge would mean that he would, or should, reach outcomes that promote or enable policies that align with the social teaching of the Catholic Church. Lots of people are making this assumption, but I really think it's wrong. "Catholic values", in this context, mean reason, transparency, and civility. So, I don't think the invocation of the old chesnut about "taking orders from the Pope" is all that illuminating or fair here. You say that "if Judge Roberts took his orders from the Pope, I suspect he might frequently vote differently than he actually does and will." Actually, I suspect not. I have read nothing by Ratzinger / Pope Benedict to suggest that he is confused about the role of a judge in a constitutional democracy.
I guess I need to make points more clearly. My comment was intended not to raise questions about whether Roberts should substitute Catholic values for constitutional values, but simply to note that a) if he did his conclusions would sometimes be liberal as well as conservative, and then b) to suggest that the way people in good faith interpret religious and constitutional scripture seems influenced by deeper vaue commitments.
mjh21 makes a fair point that liberals will not be appalled at judges who use, among other factors, their own faith to reach a decision, provided they agree with it. i dare say that the same standard applies to conservatives. it all goes back to a post i made several weeks ago when i said that i never saw anyone who screamed that a decision was an unconscionable exercise of judicial activism when they agreed with the result. to say that this only happens on the liberal side of things (and it does) is to be entirely disingenuous and self-righteous.
There may well be a much stronger case for accusing conservatives of being unprincipled and result-oriented. Take, for example, conservatives' bend-over-backwards attempts to leave the door open for "Intelligent Design." Today's National Review Online editorial, for example, blames Supreme Court meddling for the controversy and concludes that the Evolution-versus-Intelligent-Design debate ought to be a matter decided by the states. I don't believe for a minute that the bright people over at National Review have a lot of confidence in Intelligent Design. But since those who line up with ID also line up with conservatives in general, National Review isn't about to call ID-niks a bunch of lunatics who ought to leave their zealotry out of high school textbooks.
Could you go back and proofread your post? I think it has several errors in it. If I am wrong about the errors, then I have to say I can't understand the syntax, which might also give reason for further proof-reading.
Line 1: "Liberals concerned with Judge John Roberts" I assume that should read "concerned *that* JJR", unless you want to tell us how the *Liberals* "might act".
Second para: "Both Roberts and John Kerry and probably sincere Catholics"
I assume this should read "*are* probably", or this clause has no verb.