Time and again, though, the Rehnquist Court refused to decide the great constitutional issues of our day--abortion, gay rights, and affirmative action. They did so under the guise that it is not the court’s role to engage in moral theorizing. But we cannot deny that unconscious moral judgments are at the very root of judicial proceedings. If the law is divorced from morality, it runs the risk of becoming brutal and arbitrary. People would cease to willingly abide by a law that departs from notions of the common good. Only when the law hews to generally held notions of fairness (a word informed by morality, not logic), can it reinforce social norms, further general deterrence, and cultivate a sense of condemnation for wrongdoing.

The vaguely written and contradictory decisions handed down by the Rehnquist Court are as much in violation of these basic goals as was the grand moral theorizing of the Warren Court. By closing their eyes to the inextricable bond between law and morality, the Rehnquist Court failed to provide guidance with regard to the dominant constitutional issues that came before them.

That might soon change. President Bush has consistently said that he favors Justices Antonin Scalia and Clarence Thomas and he would like to appoint justices with similar leanings. Now he has his chance. One hopes that he nominates Justices who do not quiver at the essential purpose of their position—to resolve the complex legal issues before them. To a certain degree, that means acknowledging that morality and law are inseparable.