Leaders of the religious right are demanding a hard-line conservative Supreme Court as payback for their contribution to the re-election of President George W. Bush. Liberals, meanwhile, are seeking consolation in a roll call of justices, past and present, who have demonstrated the annoying independence fostered by elevation to a job with lifetime tenure. The list includes Earl Warren, Harry Blackmun, David Souter, and Sandra Day O'Connor, whose unpredictable swing votes on abortion cases are not exactly what Ronald Reagan had in mind when he chose her for the court in 1981.
The forlorn liberal hope is that Bush, who has promised to appoint only “strict constructionists,” will repeat the scenario played out when Dwight Eisenhower described his appointment of Chief Justice Warren as the “biggest damn fool mistake I ever made.” But there is no factual basis for this wishful thinking, because what Bush means by a strict constructionist -- sometimes called an “originalist” -- is not simply a judge who is a legal conservative but one who shares the president's and his core supporters' ultraconservative religious beliefs.
It is true that many justices have responded in unanticipated ways to issues that surfaced after they ascended to the high court. Warren's leadership in producing the unanimous 1954 school-desegregation decision (Brown v. Board of Education) and Blackmun's 1973 authorship of the majority opinion legalizing abortion (Roe v. Wade) are prime examples. But if a judge interprets law as a manifestation of divine will rather than human intent, he is not morally or intellectually free to “grow” in office. What if Warren had believed, as many fundamentalists did at the time, that segregation was biblically ordained by God, and that blacks were descended from the accursed “sons of Ham”?
Far-fetched? Not when you take a close look at the public statements of one of Bush's favorite Supreme Court justice, Antonin Scalia -- a Reagan appointee touted by leaders of the Christian right as the ideal replacement for the ailing 80-year-old Chief Justice William Rehnquist -- or when you scrutinize the religious convictions of the president's recent nominees for federal district and appellate judgeships.
In an extraordinary speech delivered at the University of Chicago Divinity School in 2002, Scalia mounted a pro–death-penalty argument based largely on his belief that all lawful governments derive their power from God -- and because God has the power of life and death, so too must government. “Few doubted the morality of the death penalty in the age that believed in the divine right of kings,” the justice intoned, as if that were relevant to a republic whose Founders deliberately omitted any mention of God from the Constitution and instead ceded civic authority to “We the People.”
Scalia then turned to the favorite text of conservative politicians and theologians, Paul's Epistle to the Romans: “Let every soul be subject unto the higher powers … . Whosoever therefore resisteth the power, resisteth the ordinance of God; and they that resist shall receive to themselves damnation.”
What made this speech extraordinary was not Scalia's constitutional case for capital punishment but his open reliance on faith as the underpinning of his legal philosophy. I consulted five prominent constitutional-law professors and none could recall any other speech in which a Supreme Court justice explicitly used religion as the rationale for a legal position. “If a judge is getting his legal directions from God and the Bible,” says Norman Dorsen, Stokes Professor of Law at New York University and past president of the American Civil Liberties Union, “constitutional and legal arguments are then transformed into religious arguments. And how do you argue with a judge's concept of God?”
Scalia stands for the kind of fundamentalist religion (in his case, fundamentalist Catholicism) that Bush and the Christian right represent among Protestants. Indeed, Scalia is more Catholic than Pope John Paul II, who opposes the death penalty because he believes that only God has dominion over life and death.
Bush's own appointees evince the same degree of religious extremism. James Leon Holmes, confirmed as a U.S. District Court judge by a spineless Senate last July, scoffed at church-state separation in a 2002 speech to the Society of Catholic Social Scientists. He asserted that “Christianity transcends the political order” and predicted that the “final reunion of Church and state will take place at the end of time, when Christ will claim definitive political power over all creation, inaugurating a new society based on the supernatural.”
William Pryor, whom Bush appointed to the 11th U.S. Circuit Court of Appeals during last February's congressional recess in order to circumvent the Senate confirmation process, holds equally extreme views. (Pryor must be confirmed by the new Congress to keep his job permanently.) As Alabama's attorney general, Pryor was distinguished by his unremitting support for Judge Roy Moore's installation of a 2-ton Ten Commandments monument in the state courthouse. Pryor even used his state office to promote monument worship in other parts of the country. In a press release announcing the filing of an amicus curiae brief in an Indiana case, Pryor compared the removal of recently minted Ten Commandment displays from American public spaces to the Taliban's destruction of thousand-year-old Buddhist statues.
The injection of religious fanaticism into the judicial process has been confused and conflated with more traditional conservatism. Given Rehnquist's battle with thyroid cancer, it seems likely that he will step down soon and provide the first opportunity for Bush to place his personal stamp on the high court. Many commentators have mistakenly suggested that because Rehnquist is an archconservative on the limits of federal power, his replacement by Scalia -- or anyone else who thinks in Scalia's theocratic terms -- would make little difference to the court's deliberations.
But Rehnquist is a legal conservative, not a religious fundamentalist. Unlike Scalia and Clarence Thomas, Rehnquist does not trim his views on federalism whenever religion is involved. In a critical church-state-separation case decided last spring (Locke v. Davey), Rehnquist wrote the majority opinion upholding a Washington-state law that bars taxpayer-financed scholarships for the training of clergy. He observed that “from the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of ‘established' religions.” The only two dissenters were Scalia and Thomas, whose general support for states' rights was overridden by their eagerness to seize every opportunity to foster religious entanglement with government.
Many more church-state issues will make their way to the high court during the next four years. Reproductive-rights groups are likely to challenge a federal budget amendment overriding state laws that require health-care institutions to provide abortion services as a condition of receiving public funds. Under the new rule -- muscled into an appropriations bill by conservative House Republicans giddy from the election results -- health-care providers are no longer obliged to provide a referral to another institution even when a woman explicitly asks about abortion. Another issue that may come before the Court is the constitutionality of taxpayer-financed, faith-based drug-rehabilitation and prison programs that engage in religious proselytizing.
Lawyers for conservative Christian groups have already indicated that they will ask the Supreme Court to revisit issues raised in the Locke case. Both the Catholic Church and the Protestant right want to overturn old state laws barring tax support for religious schools, because those statutes pose a powerful obstacle in 37 states to voucher programs for parents who want tax breaks to send their children to church-sponsored schools.
If Bush is able to replace three justices during his second term (a distinct actuarial possibility), the 7-to-2 Locke majority could dissolve into a 5-to-4 split in favor of turning the clock back not to the 1950s or the 1920s but to a time before there even was a United States of America. Yes, those were the good old days before our godless Constitution, when hardly anyone in the world thought there was anything wrong with the state subsidizing the word of God or with God's (self-appointed) spokesmen lending a divine legitimacy to the actions of earthly rulers.
Susan Jacoby is the author of Freethinkers: A History of American Secularism.