Some, supposedly, legal matters defy the efforts of conscience prone jurists to place them under the knife of juridical dissection. Take, for instance, the sexual practices of consenting adults in the privacy of a bedroom. Just thirty years ago, the sodomy laws of ten of the thirteen original states made anal intercourse between homosexuals and between heterosexual men and women a crime. Then along came state Supreme Court decisions declaring such laws unconstitutional with the admonition that individual privacy is sacrosanct under the U.S. and state Constitutions. The ?moral? laws, as they were commonly called, had been strictly enforced under 17th Century colonial jurisdictions when there was not a constitutional separation of church and state. The early Massachusetts Bay Colony was governed under puritanical law for nearly a hundred years in accordance with what the ruling Puritans considered as divine decrees set forth in the Bible. From 1640 until around 1750, a strict biblical code of morality was systematically enforced in the North American coastal region that was called New England, which was carried over into common law and eventually codified into state penal codes. Even after the ratification of the U.S. Constitution, these ?moral laws? were retained by Massachusetts, Maine, New Hampshire, Vermont, and Rhode Island, the violation of which was criminal in nature. But, despite their statutory presence, the enforceability of such laws after 1789, limiting the expression of affection between mature consenting individuals, remained essentially negligible. The impractical effect of laws passed by the federal and state legislatures with the intent of proscribing intimately personal relationships and processes, such as inter-racial marriage and abortion, is summed up in the sage expression, you can not legislate morality. In order to insure that such laws are never declared constitutional and enforced upon the people of the American republic, the federal judiciary was established. And the highest court in the land is the U.S. Supreme Court, where constitutionality is ultimately and finally determined.
Perhaps conservative federal judges, selected to serve on the U.S. Supreme Court, go through a refiner?s fire, of sorts, causing the individual jurist to realize the true meaning of Henry David Thoreau?s motto, ?That government is best that governs least.? To have in one?s hand the voting power to limit the personal freedom of an entire nation of people is quite an awesome responsibility. Such power causes the sincerely unbiased justice to think twice, if not thrice, about reversing previous decisions of the Supreme Court, to render them unconstitutional in favor of laws restricting civil rights. Roe v. Wade is such a decision which, if reversed, will affect the lives of millions of pregnant women throughout the country. I must believe that a majority of the ?Brethren,? who comprised the Supreme Court in 1973, voted their conscience in stating that the federal government has no authority to legally dictate what a woman can and cannot do with her own body. There might have also existed in their minds an additional consideration about the inappropriateness of attempts to legislate morality. Perhaps reflection on the poignant history of religion meddling in civil and criminal law, and the human death and destruction caused thereby, prods the prudent legal scholar to advocate and retain laws which are not predicated upon religious values and traditions.
The presumed predictability of jurists, judges, and legal scholars to follow particular conservative and liberal patterns of legal determination has historically come back to ironically bite expectant American presidents in their hind parts. Of all the people to be labeled as either conservative or liberal constructionists, seasoned jurists sincerely dedicated to a case-by-case analysis of federal issues are not among them. President Theodore Roosevelt presumed that Supreme Court Justice Oliver Wendell Holmes, Jr. could be relied on politically to endorse and advance his trust-busting agenda. In fact, according to Texas A&M historian H.W. Brands, Roosevelt?s intention for appointing Holmes, in 1902, to the high court was for Holmes to vote in accordance with presidential policy. Two years later, however, Holmes proved to be an independently minded jurist when he dissented along with the Supreme Court minority against the position of the government in the case of Northern Securities Co. v. U.S., 193 U.S. 400 (1904). This put a rift between Roosevelt and Holmes which became substantially wider when Holmes, ten years later, commented on his dissent in the Northern Securities case and repeated authoritatively a statement by a contemporary that, ?what the boys like about Roosevelt is that he doesn?t give a damn about the law.?
Perhaps this is what the boys on the Hill are saying about George W. Bush and his inner-circle of cronies. Perhaps Bush?s appointment of John G. Roberts to the U.S. Supreme Court is a statement of his presumption that Roberts will vote predictably in accordance with the President?s political expectations. Roberts has made quite a record for himself during his time working for the Executive Branch. He has it very plain concerning his unwavering stand on abortion rights. His ultra-conservative point of view has been established through the continual support he has given to militant abortion protesters in federal cases. As a Deputy Solicitor General, Roberts advocated the rights of abortion protesters to block access of women to reproductive health care clinics, a legal right guaranteed by the U.S. Constitution. In the case of Bray v. Alexandria Women?s Health Clinic, 506 U.S. 263 (1993) (No 90-985), Roberts argued as amicus curiae (friends of the court) for the United States supporting Operation Rescue and six other individuals who routinely and forcibly blocked access of patients to reproductive health care clinics. In his intervening argument, Roberts asserted that the deliberate and forceful acts of the protesters did not amount to discrimination against women, even though only women could exercise the right to seek an abortion.
It would be interesting, if possible, to place Judge Roberts back in time to a circumstance where Afro-Americans were barred forcibly by a group of white people from patronizing a public theatre and a Supreme Court review of the constitutionality of the act ensued. Would he have then submitted to the Supreme Court what he asserted in the Bray case, that the deliberate and forceful acts of the protesters did not amount to discrimination against black people? I can see bias written all over Roberts as he presents himself to the Senate for confirmation. If the Senate cannot examine his Justice Department and judicial records and positively conclude that he made up his mind decades ago about the constitutionality of abortion, school prayer, and the general application of 5th and 14th Amendments to civil rights issues, while he was a sassy government attorney for the conservative consensus, there is something awry in the confirmation process.
The human rights of women regarding the disposition of their bodies are much too important an issue to be relegated to the capricious whims of a Republican-controlled Congress. Laws which attempt to classify a fetus inside of a woman as an entity protected by the U.S. Constitution are sorely lacking precedent, for the Constitution mentions only two categories of individuals protected by the 5th and 14th Amendments. These are those who have either been born or naturalized, and the unborn are not mentioned at all.
Natural and induced abortions have occurred since the advent of man. The induced procedure was performed frequently in the days of the venerable Thomas Jefferson, who obviously didn?t consider it an important enough issue to discuss publicly or in his personal writings. In fact, abortion didn?t become a controversial subject of social and religious debate until the middle of the 20th Century. At that time, a religious revivalism was occurring throughout the United States allowing political candidates to use the popularity of moral issues, predicated on religious principle, to attract rank-and-file voters. If the popular 1950?s radio evangelist preached that abortion was tantamount to murder and should be outlawed, and had influence over the minds of millions of American citizens, the pragmatic politician jumped at the opportunity to endorse the evangelist and the doctrines he taught in order to garner votes. Money has always been the mother?s milk of politics, and, by riding the popular social, moral, and religious issues, the shrewd politician can effectively use that money to buy his way into state and federal office. But just because a social issue, such as abortion, is given religious credence by evangelists and career politicians, the issue doesn?t, in any way, become a theological matter. This is what a discerning Supreme Court justice will have to seriously consider before casting a vote to reverse or affirm Roe v Wade. A sitting President cannot expect a prudent and unbiased justice to vote according to the political and religious winds blowing in favor of, or against, a particular standing Supreme Court precedent. Perhaps that is why he has nominated Mr. Roberts to be a rubber stamp for the neo-conservative agenda.
Norton R. Nowlin holds M.A. and B.A. degrees from the University of Texas at Tyler plus one year of law school at Thomas Jefferson School of Law, in San Diego, California. In addition to the foregoing, Mr. Nowlin`s educational prowess extends 70 semester hours beyond a master`s degree in sociology, history, and law. Mr. Nowlin is presently a free-lance paralegal. He is also a published essayist, free-lance writer, and poet. He is married, the father of three grown children, and resides with his wife, Diane, in Mountlake Terrace, Washington.
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