Judicial Do Gooders

At our Saint John Fisher Church "Moral Decisions Group" meetings we have been studying the First Amendment of the Constitution, aided by the fine videotapes of Notre Dame Law Professor Gerard Bradley. At the last meeting one of our fellows objected to Bradley’s contention that the “common good” has been harmed by the Court’s mistaken interpretation of the First Amendment, and that society would be better off were those false interpretations reversed.

Our friend felt that the Supreme Court has done a lot of good, and he mentioned the Civil Rights movement as a prime example of judicial “do-gooding.”

OK, as Brit Hume would say to the Fox All Stars, “So what about it?” Mort?

Regrettably, I must answer for Mort and Fred but probably not Mara that it is not the Supreme Court’s job to “do good.” The courts must do justice and that is a whole other kettle of fish. The courts, Supreme and other, are tasked by the Constitution to decide cases on the basis of the facts, the Constitution and prior law (Stare Decisis). The courts responsibility is to do justice under the law and not to make social policy to suit their own ideas of “good.”

When courts make decisions they are not allowed to take into account their opinions, or feelings, about what is good, fair or pleasant. When the courts stray into legislative territory, they harm the constitutional republic and generally do much more harm than good. It’s what we call judicial activism or judicial tyranny.

Now let’s be specific, beginning with the religion clauses of the First Amendment. In the Dec. 1995 issue of The American Enterprise, Judge Michael McConnell (Mitch is a great candidate for the Supremes) wrote about “The Movement for Religious Rights.” Mitch noted that: “In the past few decades, there has been an extraordinary secularization of American public life, especially in the schools.”

His position on free speech is as follows: “First, when private persons (including students in public schools) are permitted to engage in speech reflecting a secular viewpoint, then speech reflecting a religious viewpoint should be permitted on the same basis. Second, when the government provides benefits to private activities, such as charitable work, health care, education, or art, there should be no discrimination or exclusion on the basis of religious expression, character, or motivation. Most people agree that government should be neutral toward religion, but … neutrality and secularism are not the same thing.”

Even the famously liberal Justice William Brennan agreed in McDaniel v. Paty, 1978: “The establishment clause… may not be used as a sword to justify repression of religion or its adherents from any aspect of public life”

Yet in thousands of cases, valedictory speeches have been censored because of religious content, student research topics have been selectively curtailed, distribution of religious leaflets has been limited, and public employees have been ordered to hide their Bibles. In the public schools religious references in the curriculum have been comprehensively eliminated and religious students are forced to shed their constitutional rights at the schoolhouse gate, while advocates of various “progressive” ideologies are free to use the schools to advance their ideas of public morality, even when these ideas contradict the convictions of religious parents.

Religious symbols of historic value are stripped from public seals, the Ten Commandments are forcibly removed from public buildings, atheist's are trying to strike the words "under God" from the Pledge of Allegiance and the First Amendment has been turned into an excuse for official hostility to religion.

But what about the “good” Civil Rights movement? The splendid jurist Roger Taney writing for the majority in the infamous Dred Scott v. Sandford case (1856) said that “citizenship was perfectly understood to be confined to the white race.” Thus blacks were not citizens, until Mr. Lincoln, not himself a judge, did something about it.

Then in Plessy v. Ferguson (1896) the Supreme Court upheld a Louisiana law providing separate accommodations for blacks and whites on trains, legitimizing generations of “separate but equal” consequences. Finally when it was overturned in the 1954 Brown v. Board of Education decision, the Court at least stopped doing harm.

But don’t forget the 1944 decision in Korematsu v. United States when the Supreme court upheld the saintly FDR’s decision to put 110,000 Japanese Americans into internment camps.

There is much more judicial doing good but I'll save it for another post.

I guess the courtly philosophy is pretty well summed up by Supreme Court Justice Thurgood Marshall: “You do what you think is right and let the law catch up.”

Yep, that’s the ticket.