Analysis: Judge John G. Roberts Nominated to Supreme Court
July 20, 2005
Alan J. Reinach, Esq.
Many conservatives are salivating over the nomination of Judge John G. Roberts to the Supreme Court. They are claiming him as one of their own, and praising the president for fulfilling his campaign promise to give them someone who would vote to overturn Roe v. Wade, the decision legalizing abortion.
Judge Roberts has only served on the D.C. Circuit Court of Appeals for two years, and his twenty published opinions leave little of controversy that is subject to attack. The NY Times criticized a decision in an environmental case, while I disagreed with a decision in an employment discrimination case upholding a mandatory arbitration clause even though it required waiving the right to punitive damages. Because of his combination of stellar accomplishment, personal integrity, and a “low profile” that will be difficult to attack, Judge Roberts is expected to face a much easier confirmation battle than “the mother of all confirmation battles” observers had feared.
On church-state issues, a liberal group, The Alliance for Justice, criticized Judge Roberts on the occasion of his appointment to the D.C. Circuit Court of Appeals for two briefs filed for the former Bush administration. Roberts defended the Equal Access Act, permitting Bible clubs to meet in public high schools and be treated the same as other non-curriculum related student clubs. In a second brief, Roberts defended a prayer at a public high school graduation. I would grade him 50%, since I support the Equal Access Act, but oppose ceremonial prayer at public high school graduation, as coerced, government sponsored religion.
As you listen to the political rhetoric flying through the media in the coming weeks, please note the following.
1. You’ll hear much emphasis on “interpreting the constitution” rather than “legislating from the bench.” This is nonsense. The right wants judges who will ignore settled constitutional interpretation, and actively impose their political and social agenda. They don’t oppose activist judges, they just want their own brand of activists, like Justices Scalia and Thomas.
2. In the same vein, you’ll hear about “original intent.” I strongly support “original intent” in constitutional analysis. The problem is that, especially in the church-state arena, conservatives re-write history, and distort the original intent of the framers of the constitution. They attack the separation of church and state which was widely accepted when the First Amendment was adopted. For example, Clarence Thomas argues that the Establishment Clause protected the right of states to establish religion. He ignores the fact that every new state adopted its own establishment clause, many of which were stricter than the U.S. Constitution. To argue, as he does, that states should be free to establish religion is to say that they should be free to violate both the U.S. and state constitutions.
3. Judge Roberts is undoubtedly well qualified to serve on the Supreme Court, and is expected to excel in his legal reasoning and judgment. He may or may not deliver what the religious right is hoping for – a knock out blow to Roe v. Wade. Historically, judges have surprised people when they are on the Supreme Court, and have to decide actual cases.
4. Although it was inevitable, given the current politics, that the Bush Administration would obtain approval of the religious right for any nomination, the power wielded by the religious right should alarm students of Bible prophecy. It is unseemly for the church to be wielding so much political power. It is also a fulfillment of Revelation 13.
These religious liberty newsflashes and legislative e.lerts are published by the Pacific Union Conference of Seventh-day Adventists, Department of Public Affairs & Religious Liberty.