Will Roberts Judge Amorally?

The more we read, the more we know.

The unfolding disclosure of John Roberts’ writings reveals a judicial philosophy similar to that of his mentor, Chief Justice Rehnquist. It is judging without morality.

Rehnquist and Roberts surely have the highest character. But Rehnquist avoids moral determinations by deferring to the states and other branches of government, and Roberts has copied this approach.

Often that deference yields a moral result, but increasingly it disappoints by failing to persuade fellow justices and the public. President Bush abandoned the bully pulpit of the Supreme Court by choosing Roberts rather than someone like Justices Scalia and Thomas, as Bush had promised.

Roberts’ AWOL approach to morality explains why Bush's opponents cheered this nomination with such gusto. Liberals know Roberts will be at most one weak vote out of nine, in contrast to other contenders who could have persuaded colleagues and the public on moral grounds.

Roberts may imitate Rehnquist on the partial-birth abortion issue. In Carhart v. Stenberg (2000), Rehnquist voted against the heinous procedure by citing precedent rather than moral outrage. Rehnquist could muster only three sentences, paling in comparison to Justice Kennedy's moral outrage, and Rehnquist even refused to join Scalia's statement that the Court's decision in favor of the procedure would one day be overruled.

Bush supporters who think Roberts will emerge from 15 years of silence by suddenly speaking out need to read his mentor's opinions more carefully. Rehnquist's agreement with the moral side is often only by chance, and would fail on key issues like embryo experimentation, “right to die,” illegal immigration, same-sex “marriage” and restrictions on speech.

Roberts can be expected to defer unthinkingly to the states and other branches of government on these issues, as dictated by federalism and separation of powers. Roberts’ nomination could prove not only to be a disappointment, but actually a step backwards.

While Roberts may vote to narrow Roe v. Wade, his legal philosophy does not support overruling precedents. Rehnquist himself declined to overturn the Miranda warning protecting people against self-recrimination, despite criticizing it for years.

Roberts’ approach is also ill-equipped for future controversies. Embryo experimentation by a state would presumably be allowed by his deference to state power, and congressional regulation or prohibition of it might even be invalidated by a Roberts Court.

After all, Rehnquist's approach proved ineffective in addressing the “right-to-die” issue, which was first presented to the Court in Cruzan v. Director, Missouri Dep't of Health (1990). Nancy Cruzan was in a “persistent vegetative state,” and her own parents wanted to cut off life support.

Rehnquist, true to form, deferred entirely to the State of Missouri in a decision that appeared to save Nancy Cruzan's life. But subsequent events illustrated how worthless that approach was.

Within months, a Missouri court authorized the termination of Nancy's life, and a few years later Nancy Cruzan's father then took his own life, too.

By deferring to state courts, Rehnquist's federalism left federal courts helpless to save the healthy Terri Schiavo from a court-ordered termination of her life despite her parents’ attempts to save it. Not even a special Act of Congress could compel the courts to bring justice, under Rehnquist's approach, to a woman who had been denied therapy for years.

Judicial deference to states makes even less sense for illegal immigration, as one state's permissiveness opens the door for illegals to enter every other state. Rehnquist deferred to the Executive Department in agreeing in Hamdi v. Rumsfeld (2004) that Hamdi, an enemy combatant captured in Afghanistan, had a right to American citizenship simply by having been born on American soil.

Traditionally, mere birth of an individual on American soil has not alone conferred citizenship, just as it does not for the offspring of foreign diplomats stationed here. Millions of descendants of illegal aliens could insist on citizenship as “anchor babies” if birthplace alone sufficed, and thereby encourage more illegal entries.

But Rehnquist allowed Hamdi to assert citizenship because he was “[b]orn an American citizen in Louisiana in 1980” to Saudi Arabian parents who subsequently returned to their homeland. Dissenting, Justice Scalia accurately called Hamdi a “presumed citizen” rather than an actual one.

Free political speech, including the Internet, is another issue of growing significance that also fares badly under the Rehnquist-Roberts view. Rehnquist supports congressional restrictions on campaign speech and donations, citing his mentor Justice Jackson and the ultimate icon against morality in law, Oliver Wendell Holmes.

Justice Holmes, like Roberts, was Harvard-educated and idealistic in his youth. But Holmes went down the dead-end road of judging without morality, leading him to affirm the forced sterilization by Virginia of a woman because she had an IQ lower than average.

“Three generations of imbeciles are enough,” Holmes bellowed in triumph of his amoral form of justice, Buck v. Bell (1927).

It is not a call for judicial activism to recognize that morality is an essential element of law and necessary both to persuade and to stop inevitable transgressions. America can ill afford to be led down the road of amoral judging as we confront the future “Buck v. Bell” issues of embryo manipulation, “right to die,” and same-sex “marriage.”

As Bob Dylan famously sung, “The times they are a-changing.” Since Roberts is at best a throwback to Rehnquist's and Holmes’ approach of judging without morality, Roberts could become an obstacle rather than an ally to pro-family causes in the future.

Andy Schlafly is general counsel to the Association of American Physicians and Surgeons, founded in 1943.