Access your downloads at our archive site. Visit Archive

Courting the Court

  • Stephen Hays,
Share this

A number of conservatives and conservative groups are hailing President Bush’s nomination of John Roberts to the Supreme Court. But at this stage a measure of restraint would be more than prudent.

In his general judicial philosophy he has upheld the prerogative of judicial review:

The Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. (

This no doubt represents mainstream jurisprudence, but it also lies at the poisonous root of judicial activism. Thomas Jefferson, for one, dissented from Marbury v. Madison, and his reasons are both penetrating and prescient:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. —Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that “the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.” If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow … The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. —Thomas Jefferson to Spencer Roane, 1819. ME 15:212
This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt. —Thomas Jefferson to Edward Livingston, 1825. ME 16:114
(, brackets included in source)

Regarding Roe v. Wade, Roberts’ position is scarcely more encouraging:

When serving as deputy solicitor general during the administration of the first President Bush, Roberts filed a brief in 1991 on behalf of his client, writing: “We continue to believe that Roe was wrongly decided and should be overruled.”
But during his confirmation hearings in 2003, Roberts insisted that the brief contained the administration’s opinion, not necessarily his own. “The statement in the brief was my position as an advocate for a client,” he said. (,2933,163160,00.html)

This is a rather evasive position. It is, of course, true that a government employee need not agree with every jot and tittle of official policy. But there are certain matters of principle. No one is forcing him to work for the government. And if he cannot, in good conscience, advocate official policy, he has a duty to resign in protest.

Judge Roberts is also on record as having said:

Roe v. Wade is the settled law of the land … There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent. (

Respecting precedent is a sorry substitute for respecting innocent life. And respect for precedent is a sorry excuse for a miscarriage of justice.

Much more is at stake than Roe v. Wade, although the stakes could not be higher in that case alone. We need a Supreme Court that is willing to repeal its past misdeeds.

  • Stephen Hays

Stephen Hays doubled-majored in history and classics at Seattle Pacific University and is currently both a student and teacher's assistant at Reformed Theological Seminary. He resides in Charleston, SC.

More by Stephen Hays