If you are looking for a reason to care about next year's elections, consider this: At least four, and as many as six, of the nine justices with life tenure on the United States Supreme Court actually believe that “at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”
This “mystery” passage, which sounds more like an excerpt from an undergraduate's term paper or a New Age tract than sound constitutional law, is taken from the infamous 1992 decision Planned Parenthood v. Casey. In that case, the Supreme Court re-affirmed the constitutional right to abortion it had invented 20 years earlier in Roe v. Wade.
It's no great political insight to observe that abortion and federal judge selection will be at the heart of the 2000 campaign. Candidates have already been asked whether they would impose a litmus test on potential judges (that's media code language for asking potential appointees how they would vote on abortion-related cases), and have responded with various disingenuous dodges. But of course the candidates — all the candidates — have litmus tests. This is not news, nor is it a bad thing. Does anyone really think that a Democratic president would nominate for a judgeship any lawyer who thought affirmative action was unconstitutional, or that a Republican would elevate judges who would invalidate the death penalty?
Abortion is today our nation's great shame, and the de-humanization caused by the abortion mentality is perhaps the greatest threat to our culture. Our intolerable indifference toward the sacrifice of unborn children on the altar of the false god “Autonomy” therefore should be a campaign issue. But Casey's mystery passage is not just about abortion; it is also about our nation's public philosophy and about the prospects for meaningful self-government — which makes Casey, and the Court, all the more important as election issues.
Now, the Casey quote is bad enough as philosophy (does anyone really believe that we can define our own universe?), and commentators have had fun lampooning its banality. But the mystery passage is even worse as constitutional law. In fact, it's downright dangerous. Casey is a threat to self-government, as well as to unborn children, because it is, despite its lofty rhetoric about liberty, profoundly authoritarian and undemocratic. The Casey justices not only believe in the opinion's breezy subjectivism, but they've also assumed the job of imposing it on the rest of us — and have set out to constitutionalize their own brand of moral relativism. When Sartre wallows in solipsistic fancy, we can dismiss it as the self-indulgence of an unhappy intellectual, but when the Supreme Court does it, it's the law of the land.
Once upon a time, the United States Constitution was not a treatise in pop existentialism, but a bold experiment in self-government. The framers took care to restrict federal powers, to protect certain individual rights against majority overreaching (although they somehow neglected to mention the right to define the mystery of the universe), and to set up a few basic ground rules. Beyond that, they left the tough choices about values and morality, for better or worse, to the American people. The framers trusted the capacity of independent citizens to govern themselves. The Casey justices did not.
What does all this have to do with the 2000 election? Not only will the next president probably appoint hundreds of federal trial and appellate judges, he or she will likely appoint the successors to Chief Justice William H. Rehnquist, Justice Sandra Day O'Connor, and Justice John Paul Stevens. And if the next president fills Supreme Court vacancies with Casey-style philosopher-kings, and packs the lower federal courts with mystery-passage jurists, the courts will surely continue to stymie all meaningful efforts to limit and regulate abortion, including gruesome partial-birth abortions, and they could well create new, life-threatening rights, like the right to assisted suicide.
The new Casey devotees would gut the notion of meaningful self-government and undermine our constitutional covenant. If we only have democracy when the Supreme Court likes our laws and when our lawmakers’ values happen to coincide with the justices’ notions of the mystery of life, then we don't have democracy at all. A court that uses an ideologically loaded concept of liberty to trump duly enacted laws touching on difficult moral questions is not a neutral court.
We know what these difficult questions are: What may we do to protect the lives of unborn children and increase respect for the sanctity of human life? Must we stand by while doctors assist in the deaths of the disabled, the ill, the poor, and the aged? May our laws reflect and promote longstanding moral views regarding the nature of marriage and family?
Many Americans agree with the Supreme Court that liberty must include the right to assisted suicide and to end the life of an unborn child. Others think the Constitution leaves these matters to law-makers and to the people. Still others insist that the Constitution guarantees the same legal protections to unborn children and the terminally ill as it does to everyone else. After all, as Dr. Seuss put it, a person's a person, no matter how small. People will always disagree about moral questions and the law will always embody someone's morality and values. We have to decide as a nation which of the competing moralities our laws will embody and express.
In many ways, as Princeton Professor Robert George has observed, the debate over so-called social issues is really a clash between two radically different conceptions of the meaning and dignity of human life — between what Pope John Paul II would call the Gospel of Life and the Culture of Death. From one view, George notes, an unborn child has no right not to be killed at the direction of its mother — no right, at least, that the law may legitimately recognize and protect. And, at the other edge of life, every individual has the right to commit suicide and to be assisted in committing suicide, should that person, for whatever reason, prefer death to life.
This is the view the Casey justices would impose on us: the view that liberty means radically amoral individualism. From the other, more traditional, view, however, human life, both before birth and near death, is intrinsically, and not merely instrumentally, good; therefore, it is morally inviolable. This view, rooted in centuries of religious and philosophical tradition, says that the law not only may, but should, protect and respect human life, especially the lives of the most vulnerable.
When it comes to the sanctity of human life, the Supreme Court, like the nation, is deadlocked between those who believe their job is to protect and facilitate representative self-government (to let us decide) and those who see the Constitution as a license to second-guess the people's choices. In 1997, led by the chief justice, the Supreme Court in Washington v. Glucksberg re-affirmed the govern-ment's right to protect the vulnerable elderly and severely ill by outlawing physician-assisted suicide. The chief justice's opinion, joined by four other justices, played down Casey's extravagant narcissism and deferred instead to our legal traditions and to popular sovereignty.
Glucksberg therefore dealt an important blow to the culture of death, but its future is precarious. Will it be Casey or Glucksberg — secular relativism or self-government? The upcoming election will determine whether the justices and the courts will assume for themselves the right to revise and re-invent American morality or will instead leave the resolution of social issues to society. Sounds to me like a reason to visit the polls.
Richard W. Garnett is an assistant professor at Notre Dame University Law School.