President Bush has consistently said that he favors Justices who tend toward protecting state rights and restricting national power. Rightly so. 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 most important passages of the constitution are vaguely worded and subject to interpretation. The answer of where to draw the line between individual autonomy and the need for federal standards is bound to vary with each individual judge’s sense of equity. As Former U.S. Supreme Court Justice, William O. Douglas, once observed, “at the constitutional level, 90 percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.”
So as a new court prepares to confront the dominant constitutional dramas of our day, a crucial question is to what degree should judges allow their decisions to be influenced by notions of personal equity? On one end of the spectrum is the moral theorizing of the Warren Court which used vague notions of personal autonomy to create sweeping constitutional rights from thin air (Roe vs. Wade is the prototypical case). Most observers are now in agreement that the 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.
Indeed, part of Justice Rehnquist’s legacy will undoubtedly be his role in stemming the grand liberal theorizing of the court in the 1960s to the 70s. During his two decade tenure as chief justice, Rehnquist steered the court toward the right. By breathing life into the tenth amendment and peeling back the commerce clause, Rehnquist slowly but surely limited the power of the federal government and reserved a sphere of influence for the states and “the people”.
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.