Two of the U.S. Supreme Court's most liberal justices - Sandra Day O'Connor and John Paul Stevens - are on the verge of retirement. Chief Justice William Rehnquist, 80, is undergoing treatment for thyroid cancer and unlikely to return to the bench. The impending change in the court's composition could have a profound effect on issues as pervasive as affirmative action, the level of separation between church and state, gun control and abortion rights.
President Bush favors justices who protect state rights and restrict national power. Rightly so. Legislators are accountable to the people, whose vote acts as the ultimate check on the abuse of power. Legislators will do anything to avoid losing an election - even a good job. But there is no direct conduit between the will of the people and the judiciary. Unelected and unaccountable judges ought not be given the power to create law.
At the same time, we cannot deny that all judicial decisions are the product of value judgments. The Constitution is an enumeration of principles, not specific acts. Its most important passages are vaguely worded. The meaning of the Ninth Amendment, which guards against government intrusion upon personal liberty, has been subject to vigorous and contradictory debate. The answer of where to draw the line between individual autonomy and the need for federal standards varies with an individual judge's sense of equity and the interpretive methodology he chooses to employ - is the phrase "individual liberty" to be interpreted in terms of the social values of the 18th-century agrarian society that produced the Constitution, or our own?
So as a new court prepares to confront the dominant constitutional dramas of our day, a crucial question is what level of individual conscience and equity should inform their analysis? On one end of the spectrum is the grand moral theorizing of the Warren Court. which used vague notions of personal autonomy to create sweeping constitutional rights from thin air (Roe V Wade is the prototypical case). Most observers are now in agreement that the grand ideological sweeps of the Warren Court violated important notions of judicial self-restraint. Partly in response to the Warren Court, judges now shy away from moral theorizing. Decisions tend to be crouched in logic rather than natural law concepts of right and wrong. Indeed, one would be hard pressed to walk into any courtroom in this country and win a case by appealing to the natural law.
The judiciary's fear of legal moralizing is perfectly embodied by The Rehnquist Court's failure to offer a clear, intelligible and rational basis for many of their decisions. For example, in the Michigan affirmative action case, Justice Sandra Day O'Connor's majority opinion defined a lawful affirmative action plan as one that evaluates applicants as "an individual and not in a way that makes race or ethnicity the defining feature of the application." O'Connor then cryptically added that "The court expects that 25 years from now, the use of racial preferences will no longer be necessary." Nothing in O'Connor's obtuse 25-year plan tells us when race becomes a "defining feature." This sort of vaguely worded analysis fails the court's most basic purpose of providing the lower courts and the general public with guidance as to what constitutes lawful behavior.
The Michigan affirmative action case is fairly representative. Time and again the Rehnquist Court has refused to decide the great constitutional issues of our day - abortion, gay rights, affirmative action. They do 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 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 did not supplant morality with logic, they merely confused and obfuscated the role of morality. And they failed to provide guidance with regard to the dominant constitutional issues that came before them.
That might soon change. President Bush favors Justices Antonin Scalia and Clarence Thomas and he would like to appoint justices with similar leanings. One hopes that means judges who do not quiver at the essential purpose of their position - to resolve complex legal issues. To a certain degree, that means acknowledging that morality and law are inseparable, and that every decision is informed by a judge's own moral conscience. Only when justices embrace this fact, does the court serve it's most fundamental purpose of giving citizens and lower courts fair warning of what constitutes a crime.