The battle over the nomination of John Roberts for the United States Supreme Court is a key skirmish in the culture war because many Americans do not trust the court to make decisions without political motivations, Russell D. Moore said in a television debate July 25.
Moore argued that past Supreme Court decisions such as Roe v. Wade—the landmark case that legalized abortion in 1972—have left evangelical Christians and other Americans leery of the nation’s high court because it seems to have employed radical ideology instead of the U.S. Constitution to make laws from the bench.
Moore, who serves as dean of the School of Theology and senior vice president for academic administration at The Southern Baptist Theological Seminary, appeared on the “Kentucky Tonight” program on Kentucky Educational Television.
Three others appeared with Moore to debate Roberts’ confirmation: University of Kentucky law professors Carolyn Bratt and Paul Salamanca and Albert Pennybacker, chairman and chief executive of the liberal Clergy Leadership Network.
“I don’t think anyone is arguing that Roe must be overturned because we disagree with it,” Moore said. “But there is a significant group of the constituency in the United States of America who say Roe must be overturned because it isn’t in the Constitution.
“You have the Supreme Court in 1973 listing out trimesters as though this can come from the text of the Constitution. I think this is why you have such a significant culture war in the U.S. of individuals saying ‘This isn’t in the Constitution, so where is this coming from?’ It’s coming from an ideological perspective that doesn’t belong in the Supreme Court.”
In addition to Roe v. Wade, the 2003 case, Lawrence v. Texas, in which the Supreme Court overturned laws across the country banning sodomy, have shown Americans where the Supreme Court stands on key social issues, Moore said. Decisions such as these have caused many Americans to harbor grave concerns about the court’s ability to deal constitutionally with social issues, he said.
“I think the reason these issues…are the focus is because they reveal so much about one’s judicial philosophy,” Moore said. “Roe v. Wade, Lawrence v. Texas, [and] the way that one comes down on these issues tells you so much about how the justice perceives his or her role. I think that is the reason these [issues] have been at the forefront.”
Rejecting the argument that Supreme Court members legislate from the bench, Bratt contended that a judge’s task is to interpret “open-ended” clauses that exist in the constitution, which she says were framed in this manner by the founding fathers in anticipation of an “evolving” country. Bratt dismissed President Bush’s stated desire to place a strict constructionist on the bench as “sloganeering.”
So important was the issue of Supreme Court appointments in the mind of the electorate, it helped spur President Bush’s reelection, Moore said.
“It may be sloganeering, but it was sloganeering on the basis of what the president had already laid out before the country during the campaign,” Moore said.
Bratt and Pennybacker pointed to Martin Luther King’s use of the 14th Amendment to argue for Civil Rights as evidence that the Constitution is open to interpretation. However, King’s case does not directly correlate to decisions such as Roe v. Wade and Lawrence v. Texas, Moore pointed out.
“The example of Rev. King doesn’t work because what Rev. King and the Civil Rights movement were trying to say is ‘We have rights in the 14th amendment and elsewhere that established that Jim Crow is wrong on the basis on the Constitution itself.’
“[It is not as if there is] an emanation from another set of rights that give us a right that has heretofore never been seen, which is what many American people believe is the case with Roe v. Wade and with Griswold v. Connecticut and now with Lawrence v. Texas.
“They (the American people) see these decisions being made it seems on the basis of what the Supreme Court justices would like to be the case in terms of legislation rather than what is the intent of the Constitution itself. I think this is why President Bush was able to receive the vote he received from many Americans who say ‘we’re not interested in that.’”
While Bratt and Pennybacker expressed concern that Roberts might try to overturn Roe v. Wade, Moore said judges must stop reading rights into the Constitution where the framers never intended them to exist.
“You have to ask, is there a legal right to abortion in the Constitution?” Moore said. “If the answer is ‘no,’ fine, let the American people decide this state by state, let them decide it in the U.S. Congress. We don’t need to have this decided at the level of the Supreme Court.
“…I think you have a deep feeling throughout the country that the Supreme Court is usurping the political process and I think that is one of the reasons why the Supreme Court confirmation process has been a culture war and part of the larger culture war…”