Justice Anthony Kennedy has just announced his retirement from the Supreme Court. Everyone is talking about who will be his replacement.
Much is at stake. For the liberals, it could spell the end to the precarious situation in which Kennedy’s swing vote has brought them many major victories and some small defeats. For the conservatives, his replacement could lock in a majority that would assure victories for many years to come.
This is why the decision must be well made. Conservatives should not forget that it was Republican-nominated judges like Anthony Kennedy and Sandra Day O’Connor who facilitated the conservative defeat of major cases involving abortion and marriage. It was Justice Kennedy who wrote the infamous Lawrence v. Texas and the later Obergefell v. Hodges decisions which led to the decriminalization of sodomy and the recognition of same-sex “marriage.”
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No New Kennedy
Thus, the first requirement in selecting the new Supreme Court justice is that the appointee cannot be another Justice Kennedy. He was the compromise candidate who was confirmed after candidate Robert Bork’s nomination was shamelessly rejected.
The Senate should not be afraid to select a new justice who is categorical and consistent. The new justice should not change positions or subscribe to strange notions of liberty not found in the Constitution. The errors of the past must not be repeated. Finding another Kennedy-like compromise candidate, pleasing to all, would be a calamity.
No More Legislating From the Bench
The second requirement is that candidates must respect and return to the traditional notion of law. The person should reject the modern faddish aberrations which have entered the legal field. Thus, the new candidate cannot adhere to the idea that the Constitution is a living document which changes with the times and the whims of judges. The chosen justice cannot discover new rights which are contrary to those long established and found in nature. This person should not borrow from international law or judicial decisions which encroach on American sovereignty. The new candidate cannot be a judicial activist. This legislating from the bench has resulted in the court imposing its will on the American people and subverting the social order.
Americans have suffered too long under this harsh regime. In addition, let the candidate defend America’s long common law tradition which respects the conscience of those who follow a higher moral law. The new justice should reject hostility of the law toward the faith. Let there be no more belligerence toward God in the courts.
If at least this is done, America can expect some respite from the frenzied pace of a culture gone awry.
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Law Is Unanchored
Many call for a strict constitutionalist to secure the future of law in America. However, such a requirement is not enough.
For too long, the legal moorings of American society have been cut off from its tradition. Law is now treated as merely a creation of man which facilitates the organization of society. It is a morally neutral convention which is relative to whatever is determined to be law by fallible judges and legislators. Law today reflects the present moral wasteland in which there is no longer good or evil, truth or error.
Thus, law is now unanchored, and the courts are increasingly handing down justice where anything goes. America is entering into an era in which people can self-identify as anything they wish and demand corresponding rights and privileges. These people impose tyranny on society when courts validate into law the product of their unbalanced imaginations, to the point of insisting that even objectors be prosecuted.
Indeed, it was Justice Kennedy himself who enshrined this chaotic notion of law. This is found in his notorious passage in Planned Parenthood of Southeastern Pennsylvania v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
In a society where each person is a separate law, order becomes impossible. It is sheer anarchy. A return to constitutionalist theory would be welcome but insufficient.
Higher Law
Thus, there is a third and final requirement that must be demanded of the new Supreme Court justice. The candidate must re-anchor law in truth. Unless this is done, there really is no solution to the present crisis. All efforts will be in vain.
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For if law is interpreted to be the mere opinion of judges (conservative or liberal), there can be no stability. Any one opinion becomes no better or worse than any other. Law is reduced to regulation aiding individual self-interest. Justice is deprived of its universal principles independent of human will.
This is why the new Supreme Court justice must adhere to a higher law tradition.
Higher law is often referred to as natural law which is written by God on the heart of every person. It consists of an objective moral compass which makes social order possible. It is valid for all peoples, places, and times. Natural law can be perceived in society by unaided reason. It is conceived in the conviction that the source of all law—whether customary, common, or statutory—is God and his eternal law. It so conforms to human nature that University of Texas professor J. Budziszewski calls it a law “you can’t not know.”
Reconnecting With an American Tradition
Western law tradition used to hold that any law, whether enacted or customary, could only be valid if it conformed to natural law. American law’s attachment to a higher law tradition precedes independence.
Both the renowned English jurist Sir William Blackstone (1723-1780) and Sir Edward Coke (1552-1634) profoundly influenced American law and unequivocally defended higher law. According to legal scholar Harold Berman, this tradition continued as “natural-law theory is written into the positive law of the United States.”
What is needed now is not only a revival of a constitutional order but a return to the roots of that order found in natural law.
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Returning to a Legal Order
Modern law went astray because it separated itself from its higher law tradition. Natural law has been discarded together with so many other certainties which once governed society and maintained order.
This is why law will only be restored when it returns to higher law. In these postmodern times when nothing is certain, there must be an appeal to an authority higher than mere self-interest or popular caprice. There must be a firm foundation in order to interpret law on the basis of timeless principles, not evolving legal diktats. The disasters of Roe v. Wade and other decisions haunt the nation just as they destroy its moral fiber. Only a higher law can call the country back to order.
Only a Supreme Court justice grounded in a higher law tradition will be able to not only interpret future laws but restore law from past devastations.
As seen on Crisis Magazine.