The Judiciary and the Rule of Law

God finally won one in the U.S. Supreme Court. He shouldn’t have.

The Court ruled, 6 to 3, that an upstate New York public school couldn’t prohibit the Good News Club, a Christian student group, from meeting on its premises after school. The liberal (that is, illiberal) position was that this would amount to an unconstitutional state endorsement of religion; the conservative view was that the ban “discriminated” against the group because it was religious.

Both were wrong. The liberal minority was wrong because the First Amendment says only that “Congress shall make no law respecting an establishment of religion”; the states are free to do so. The conservative majority was wrong because the federal government has no authority to forbid religious discrimination by the states.

The purpose of the Bill of Rights is to limit the power of the federal government, a fact Justice Clarence Thomas, who wrote the majority opinion, usually appreciates. This ruling was a case of conservative activism — imposing a policy preference under the guise of interpreting the Constitution.

Conservatives are supposed to resist judicial activism, period. They aren’t supposed to engage in it themselves. “Strict construction” of the Constitution means hewing to the letter, and letting the chips fall where they may.

One could argue Thomas was only following many liberal judicial precedents, according to which the federal judiciary may overrule state and local authorities. But Thomas took an oath to uphold the U.S. Constitution, not judicial precedents, which, if mistaken, should be ignored or reversed. Otherwise bad decisions will accumulate, superseding the Constitution itself.

Christians will naturally feel gratified that the Court has taken their side for once. But the end doesn’t justify the means. The question at stake was not whether the school’s policy was right or wrong, but whether the federal government had any say in the matter — just as in the recent case of the golfer Casey Martin, who got the Court to intrude in the private business of the Professional Golfers’ Association. If we object to Martin’s victory, we should object, however regretfully, to the victory of the Good News Club on the same principle.

The Court’s ruling was an act of arbitrary power. Everyone knows this, because it’s true of so many Court rulings. Even the headlines reflected this: “Top Court Gives Religious Clubs Equal Footing in Grade Schools” (the New York Times); “After-school Bible study allowed” (Washington Times). “Gives”? “Allowed”? This is not the language of freedom or rights, inalienable or constitutional; it implies that the Court arbitrarily accords us mere permission to do certain things. We wait upon its pleasure.

And this is now the prevailing attitude toward government in general. We no longer insist upon our rights; we seek permission. We don’t judge the government by the Constitution; we wait for the government to tell us what the Constitution means. And we never know what to expect.

How can the meaning of the Constitution — the fundamental law — be so unpredictable? Stability is the essence of the rule of law in general; unpredictable edicts, flowing from the arbitrary will of rulers (whether they are called kings, dictators, presidents, legislators, or judges), are typical of tyranny.

But Americans today are resigned to being told what to do. They accept arbitrary, unpredictable rule as normal. In fact much of our politics consists of organized attempts to manipulate the law by buying the favor of the rulers. This corruption became so flagrant during the Clinton years that many people want to stop it by limiting campaign spending.

But the problem arises not from campaign donations, but from the very nature of the government. If it were strictly limited to its constitutional powers, it couldn’t bestow many favors and wouldn’t be worth buying. But when its powers are arbitrary and boundless, the inevitable result is an auction of bribery. And the more venal the politicians, the more they will pretend to be public benefactors and philanthropists, feeling our pain.

Money isn’t the only payoff. Publicity is another, and the Supreme Court seems especially sensitive to pressure from the liberal news media. Notice how many Republican appointees to the Court have won good press by moving leftward — or, as the media purr, “growing”: Warren, Brennan, Blackmun, Stevens, O’Connor, Kennedy, Souter. When the media beckon, the Constitution tends to be forgotten.

Joseph Sobran