No issue divides our politics more bitterly than judicial appointments. John Roberts' confirmation hearings have been tame thus far and his confirmation seems likely as I write this essay. Nonetheless, Democrats and Republicans are braced for conflict over a nominee to replace Sandra Day O'Connor. Maine's two Senators may yet play a key role in seeking to build bridges. Yet lost in discussions of Supreme Court nominees is a curious sense in which both parties share a common--and prototypically American-assumption. There is a fundamentalism at the core of American politics that extends beyond the "religious right."
Far reaching policy disputes are resolved by courts. Interpretation of statutory law is imperative in any political system that seeks to limit arbitrary power. Courts in the United States, however, go beyond this function to decide the propriety of particular laws and often enact new matters of right. Americans of many political stripes believe that our freedom is more fully secured through a fundamental charter that stands "above" politics. Judges freed from the tyranny of electoral pressures secure these rights by providing a neutral reading of the charter. Yet paradoxically, this faith in one binding charter of basic rights and a non- political judiciary has often had tragic consequences. Losers of pivotal decisions view themselves as not merely defeated but shut out of most avenues of democratic debate. Far from regarding the Court's decisions as legitimate, they come to see new rights as arbitrary impositions. They treat claimants of those rights as not merely political adversaries but as truly evil.
Fifty years ago, Harvard historian Louis Hartz argued in his seminal work, The Liberal Tradition in America, that only a nation with a deep underlying consensus regarding its political values could rely so heavily on a charter and a few non elected judges to set the contours of its public life. For Hartz, that consensus included a faith in private property and individual initiative coupled with the recognition of the role that government can and must play in sustaining these values and making them more broadly available. Fifties politics, presided over by a Republican President who supported Social Security, tolerated unions, and endorsed New Deal era internationalism seemed to encourage such a view of our history. Yet even for its time, Hartz's theory neglected the ways in which consensus had often been achieved through the exclusion of certain voices and the destructive role the courts had played in this exclusion.
Social conservatives today complain that when the court broadened women's right to terminate a pregnancy it thereby invented a right not found in the Constitution. Yet even if this claim is correct, the invention and/or extension of rights did not begin with Roe v. Wade. From the turn of the twentieth century through the end of the first New Deal, both state and Federal courts consistently interpreted minimum wage laws and child labor statutes as unconstitutional. Yet one can find no mention of minimum wage or child labor laws in the constitution. If the court has created expansive notions of personal privacy, it has also been extraordinarily activist in its renditions of property.
And in both cases a politics of bitter resentments and exclusions grew. A Supreme Court that in the twenties and early thirties had taken most forms of legislative amelioration of capitalism out of the political arena was greeted with the demagogic Huey Long and Father Coughlin and with a left labor movement that spanned the compass from social democrats to hard line Communists.
As for the politics of abortion, the London based Economist is right in suggesting that "The consistent whine from the Christian right about 'liberal activist judges' contains a kernel of truth. In the 1960s and 1970s, judges changed America from a country where every school day began with a prayer, and abortion and pornography were frowned on, to a country where school prayer was banned and both abortion and pornography were protected by the constitution."
Many liberals endorse the America that these judges created, but the usual give and take of democratic politics was not the key to its creation. A price is paid when opponents of abortion rights are given a day in court but denied a day before the larger court of public opinion. Roe v Wade provided fertile soil for a virulent anti-abortion politics not merely because of the substance of the decision but also because abortion critics could play on and foster righteous indignation about their exclusion from democratic politics.
The diffuse and protean contours modern life may never be adequately guided or expressed by one unitary charter. Perhaps the best jurist would be one who, like Felix Frankfurter, allowed as much scope as possible to legislatures and the political process to make and revise fundamental law.
We are unlikely to get such a judge to replace O'Connor and many even on the Left would still prefer that abortion rights be removed from the sphere of ordinary democratic deliberation and maintained by the Court. One can undedrstand their concerns in the current political environment. But over the long haul, those rights might be better secured by a national political movement that would enact Federal guarantees in this area.
Whatever the results of current judicial politics, if we are to continue to invest so much in the Supreme Court, we need at least acknowledge that its judicial findings are merely politics by other means. And when the Court acts in ways that deny important rights, citizens must be prepared once again to build appropriate grass roots political initiatives.