How Conservative?

Should Judge John G. Roberts be confirmed by the Senate, he will become the fourth Roman Catholic sitting on this Supreme Court, joining Antonin Scalia, Anthony Kennedy, and Clarence Thomas. That the Court, long a bastion of the nation’s Protestant establishment, may soon have a preponderance of Catholics is a remarkable historical development.

Many ironies surround the ascendancy of these Catholic jurists. For one, all the current Catholic justices have been nominated by Republican presidents, and are considered “conservatives,” if of varying temperaments. Historically, of course, Catholics have cleaved closely to the Democratic Party, which was more hospitable to the urban, immigrant working class. In fact, among the senators most skeptical of the Roberts nomination are a handful of liberal Democrats who are themselves Catholic. This fact prompted New York Times columnist David Brooks (July 21) to hope that Roberts’s establishment credentials and measured demeanor would help avoid another instance of internecine “Catholic meshugas” (craziness), where “you get this brutal and elemental conflict over the role morality should play in public life.”

Roberts is the choice of a president who owes much of his political success to the evangelical Protestant community, once a hotbed of anti-Catholic bigotry. Evangelical Protestants long rejected the idea of Catholics in high public office, fearing “papists” would be taking orders from Rome. Ironically, many evangelicals are now demanding assurances that Roberts will in fact take his orders on issues such as abortion and gay rights from Rome, if not from evangelical figures like James Dobson and Richard Land.

Politics, as the saying goes, makes for strange bedfellows. The recent political alliance between evangelical Protestants and conservative Catholics is a reaction to the profound cultural and social shifts of the last fifty years, especially on issues surrounding the family, sexual morality, and the legalization of abortion. In joining together to wage the “culture wars” Brooks alludes to, socially conservative Catholics and evangelicals have discovered once hidden affinities. It will be interesting to see if this coincidence of interests persists should Roe be overturned and disputes over the death penalty, stem-cell research, or economic inequality come to the fore. In any event, the Republican Party, long suspicious of both Catholics and evangelicals, has shrewdly drawn them together for its own purposes, and as a result, an outspokenly evangelical president has nominated a devout Roman Catholic to a pivotal seat on the land’s highest court. Religion has rarely been more intimately, or unpredictably, tied to the nation’s political life.

The Roberts nomination is widely regarded as a stroke of genius by a president who usually prefers confrontation to conciliation. Roberts has been circumspect, at least on paper, with regard to the most contentious issues facing the Court, thus making him an elusive target for abortion-rights and other advocacy groups. At the same time, he is a trusted figure within the Republican Party, one who is expected to fulfill the president’s desire for a justice who will interpret the law as it is written and “not legislate from the bench.” Whether that means Roberts would vote to overturn Roe is not a question likely to be answered in the upcoming hearings, much to the consternation of activists on both sides of the debate. Preliminary reviews of the legal work Roberts did as an assistant to the attorney general in the first Reagan administration, however, show him to be a staunch conservative, skeptical of affirmative-action programs, the extension of the Voting Rights Act, and judicial efforts to address illegal school segregation through busing. He also appears to have long held to an expansive definition of executive power. As a judge on the D.C. Court of Appeals, Roberts recently joined an opinion upholding the president’s right to use military tribunals rather than U.S. courts to try “enemy combatants.”

At first glance, Roberts seems likely to be a very conservative justice, friendly to corporate interests and doubtful about the expansion of due-process rights. Whether his conservative regard for legal reasoning, craftsmanship, and judicial restraint will make him cautious with respect to established precedent or whether he will follow Scalia and Thomas, the president’s “favorite” justices, in trying to reverse much of the last sixty years of Supreme Court decisions, is the question that should be addressed in confirmation hearings in September. Roberts’s judicial philosophy, not just his resumé, is a legitimate reason to confirm or reject his nomination. Given that the ideological balance of the Court is in play, much of what is known about that philosophy is worrisome for those who think the Supreme Court must protect the rights of every American, particularly vulnerable minorities. Still, as a principled conservative, Roberts can serve the Court and the nation well. Judicial overreaching should be rejected by liberals and conservatives alike. But if Roberts’s reassuring demeanor and professional equanimity hide a more radical ideological agenda, meshugas-Catholic or otherwise-is sure to follow.
August 2, 2005

Published in the 2005-08-12 issue: 
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