Robed in Humility? [Supreme Court and Judge John Roberts]

CatholicExchange.com ^ | 07-21-05 | E. L. Core

[Salvation]

by E. L. Core

Other Articles by E. L. Core

Robed In Humility?

07/21/05

A vivid phrase has been used to describe the Supreme Court of the United States: "nine scorpions in a bottle." If only they would stay there.

But they do not. They have been, as a body, insinuating themselves into every aspect of everybody's everyday life, usurping matters of policy that by right belong to the other branches of the federal government, and matters of law that by right ought to belong to state and local governments. Like the incoming tide that slowly advances farther with each passing minute, quietly inundating low-lying levels until the unwary might find themselves surrounded by water, the Supreme Court has arrogated unto itself more and greater power, inch by inch, decade after decade, generation after generation.

Now we look around, wondering how in the world we got to be where we are, and worried how we are ever going to extricate ourselves. This worry has extended to the Left as well as to the Right. Quite recently, for instance, the court has determined that the government-forced transfer of property owned by one private party to another private party meets the definition of “public use." It also decided that a state law allowing marijuana to be grown and consumed by private individuals on their own property does not supersede a federal law proscribing such use because the Congress has the constitutional power to ”regulate Commerce... among the several States.”

Careful observers noted that neither decision should have surprised anybody. Why? Because they followed logically (so to speak) upon previous decisions of the court. Thus, the justices have effectively replaced the federal constitution with their own ipse dixit: they have established their own rulings — their own preferences, if you will — as the supreme law of the land.

Moreover, they do this willy-nilly. For sailors, any port in a storm; for justices, any excuse they can manufacture in a case. In 1992, for instance, one reason the court declined to overturn Roe v. Wade (the decision that had invalidated state laws against abortion) was that society is so divided over the issue; in 2003, the court overturned Bowers v. Hardwick (which had allowed an anti-sodomy statute to stand) partly because — because — because — because — because — society is so divided over the issue. (Confer.)

Here is how it works. Like-minded justices on the court cobble together a majority: If they want to approve something, they find an excuse to do so; if they want to not approve something, they find an excuse to not do so. Since we have allowed them to make their rulings the supreme law of the land, what excuse(s) they come up with are irrelevant. And they know it.

It was not supposed to be this way.

A new scorpion is now being dropped into the bottle. President Bush has nominated John G. Roberts, Jr., as the new justice for the Supreme Court.

Judge Roberts apparently agrees that it wasn't supposed to be this way. Here is part of his written answer, dated Febuary 11, 2003, to a written question from Sen. Charles Schumer (D-NY) during the confirmation process for Roberts's appointment as a judge of the DC Circuit Court of Appeals:

Deciding the case calls for an appreciation of both the strengths and shortcomings of the adversary system, adherence to precedent and reliance on the traditional tools of the judicial craft, and openness to the wisdom offered by colleagues on a panel. It also requires an essential humility grounded in the properly limited role of an undemocratic judiciary in a democratic republic, a humility reflected in doctrines of deference to legislative policy judgments and embodied in the often misunderstood term "judicial restraint." That restraint does not mean that judges should not act against the popular will — the Framers expected them "calmly to poise the scales of justice," as Judge William Cranch put it, even "in dangerous times." But it does mean that, in doing so, they should be ever mindful that they are insulated from democratic pressures precisely because the Framers expected them to be discerning the law, not shaping policy. That means the judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose those preferences from the bench.

My goodness. A measured, well-reasoned reply that asserts the requirement of humility. Might one be forgiven for suspecting that the mere mention of humility might stick hard in the craw of a senator? And might one have some grounds for hope that the tide might soon be turning?

Roberts is reported to be a "traditional Catholic," and his wife is said to have been an executive vice-president of Feminists for Life. Neither fact has been made much of, so far. But the contest has only begun.

Let us turn to an early American for some guidance. Here is a section of a prayer by Bishop John Carroll, the first bishop of the Catholic Church in America, dated November 10, 1791. Thus, it was composed after the ratification of the federal constitution, June 21, 1788, and shortly before the ratification of the Bill of Rights, December 12, 1791. I think it is a model, not only for prayer, but for perspective.

We pray Thee, O God of might, wisdom, and justice! Through Whom authority is rightly administered, laws are enacted, and judgment decreed, assist with Thy holy spirit of counsel and fortitude the President of the United States, that his administration may be conducted in righteousness, and be eminently useful to Thy people over whom he presides; by encouraging due respect for virtue and religion; by a faithful execution of the laws in justice and mercy; and by restraining vice and immorality. Let the light of Thy divine wisdom direct the deliberations of Congress, and shine forth in all the proceedings and laws framed for our rule and government, so that they may tend to the preservation of peace, the promotion of national happiness, the increase of industry, sobriety, and useful knowledge; and may perpetuate to us the blessing of equal liberty.

We pray for his Excellency, the Governor of this State, for the members of the Assembly, for all judges, magistrates, and other officers who are appointed to guard our political welfare, that they may be enabled, by Thy powerful protection, to discharge the duties of their respective stations with honesty and ability.

We recommend likewise, to Thy unbounded mercy, all our brethren and fellow citizens throughout the United States, that they may be blessed in the knowledge and sanctified in the observance of Thy most holy law; that they may be preserved in union, and in that peace which the world can not give; and after enjoying the blessings of this life, be admitted to those which are eternal. (source)

Surely, that's a prayer we all need to have in mind, if not always on our lips. But, let me ask you this: What kind of role do you think Bishop Carroll and his contemporaries expected the Supreme Court to play in the life of the new country and of its citizens? After all, he didn't even bother to mention it.

© Copyright 2005 Catholic Exchange


Lane Core Jr. was raised in the United Methodist Church and became a Catholic at seventeen. He has been active in Internet apologetics for almost a decade. A freelance writer for the Tribune-Review (Pittsburgh/Greensburg, Pennsylvania), he holds forth at The Blog from the Core.

[Salvation]

"A person of great humility." were the first words out of my mouth as President Bush nominated Judge John Roberts!

[Salvation]

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[maryz]

they should be ever mindful that they are insulated from democratic pressures precisely because the Framers expected them to be discerning the law, not shaping policy.

Maybe he'll be a good influence on some of the others. (You know who you are!) ;-)

[trisham]

It also requires an essential humility grounded in the properly limited role of an undemocratic judiciary in a democratic republic, a humility reflected in doctrines of deference to legislative policy judgments and embodied in the often misunderstood term "judicial restraint."

***************

So far, I am more than pleased with this nominee. Thanks for posting this.

[Smartass]

Anti-Federalist Papers

During the period from the drafting and proposal of the federal Constitution in September, 1787, to its ratification in 1789 there was an intense debate on ratification. The principal arguments in favor of it were stated in the series written by Madison, Hamilton, and Jay called the Federalist Papers, although they were not as widely read as numerous independent local speeches and articles. The arguments against ratification appeared in various forms, by various authors, most of whom used a pseudonym. Collectively, these writings have become known as the Anti-Federalist Papers. We here present some of the best and most widely read of these. They contain warnings of dangers from tyranny that weaknesses in the proposed Constitution did not adequately provide against, and while some of those weaknesses were corrected by adoption of the Bill of Rights, others remained, and some of these dangers are nowcoming to pass.

• Chronology of the pro- and anti-federalist papers and how they related to one another and to key events.
• Borden Collection — Morton Borden collected some the best of the anti-federalist papers together, editied all or parts of them into 85 sections, corresponding to the 85 Federalist Papers.
• James Wilson speech — Pro-ratification, but included here because it received wider coverage than other pro-ratification writings, such as the Federalist Papers, and many of the anti-federalist writings were in response to it.
• "Centinel" (Samuel Bryan)
• "Federal Farmer" (Melancton Smith? or Richard Henry Lee?)
• "Brutus" (Robert Yates)
• "John DeWitt" (?)
• "Cato" (George Clinton?)
• "Pennsylvania Minority"
• Patrick Henry speeches
• Melancton Smith speeches

---

Antifederalist No. 78-79 THE POWER OF THE JUDICIARY (PART 1)

(in part)
The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed under them. But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.

Clearly, big mistakes were made in our Constitution. Our federal courts were never suppose to be able to trump both other branches of government, but does!

[Salvation]

Good information here. Thanks.

[Smartass]

All we ever read and hear are the "Federalist Papers" and framers of the Constitution. But, while they were making a hard sell on that document, there was rebuttal going on that is seldom mentioned. Truth is, if it weren't for the Amendments thereto, which was suppose guarantee personal liberties, our Constitution would be a worthless piece of paper.

Fast forward. As regards the judiciary, sadly, many of the Anti-Federalist papers are now proving true. Our courts have spun out of control with no repair in sight. Shamefully, there are suppose to be a separation of powers. However, since the congress, and president remain silent when challenged by the courts, that power has slowly ceded to a nine person government.

[JCEccles]

"But it does mean that, in doing so, they should be ever mindful that they are insulated from democratic pressures precisely because the Framers expected them to be discerning the law, not shaping policy. That means the judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose those preferences from the bench."

Beautifully stated. If he doesn't stray from this perspective, he'll be a fine justice indeed.

[SaltyJoe]

"A person of great humility."

And mercy for those who've unwittingly participated in abortion. To end abortion, there will have to be protection for those that participated in it. Otherwise, we might revisit the hostile years of the post-Civil War "reformation". The assassination of President Lincoln didn't help the South recover. I fully expect God and Man's enemy, Satan, to attempt to ruin any reconciliation of the nation for all those decades of abortion.

[AliVeritas]

PING for the tenth time

[AliVeritas]

Please sign Roberts petition:
http://www.townhall.com/action/ProtectOurConstitution2.html