Post Date: July 29, 2005

The following op-ed by Professor Martha Minow appeared in The Boston Globe on July 21, 2005.

Now we know whom President Bush wants to take Justice Sandra Day O’Connor’s seat on the United States Supreme Court. We also know the legal and social issues in the balance. But we don’t know, yet, whether the Senate can cut through partisan politics to make its “advice and consent” a constructive process for us all.

The legal and social stakes are signaled by a number of recent 5-4 court decisions. George W. Bush owes his presidency to one of those. So does the current green light for case-by-case race-based affirmative action by state universities and the limited degree of reproductive freedom against the tides of legislative restrictions.

The court has moved rapidly but by a slender majority to permit government supports for religious institutions — school vouchers, computer subsidies, and scholarships — while reducing required accommodations for free exercise of religion. The next justice will have the chance to determine whether prayers can be conducted in state-supported schools.

The next justice will decide whether the court continues its push– in the name of states’ rights– to curtail the power of Congress to protect the civil rights of women, workers, persons with disabilities, and members of racial and religious minorities.

And the new justice will also wield crucial authority over whether states can authorize marriage for gays and lesbians or enable physicians to assist dying patients in ending their lives.

Current politics often makes it hard to see these issues because of distorted and politicized slogans — and because legal doctrine is more than a little confusing. For some time now, Republican and right-wing leaders have attacked the courts as “activist” when they protect individual rights but not when they cut back on those rights or enlarge their own authority while shrinking congressional power.

This is misleading. The court is no more “activist” when it protects women, members of religious minorities, or gays and lesbians than when it forbids Congress from doing so. And this court’s supposed respect for states’ rights disappears when a state democratically approves medical uses of marijuana or physician-assisted suicide.

The terms “activist” and “conservative” do not help. The meanings of both words depend on baselines that have been muddied or moved. “Conservative” means to conserve, to keep — but some of those called “conservative” want to overturn decisions and norms that have been in place for half a century.

Although the controverted cases from recent years and even for next year are already known, a life tenured post for a 50-year-old nominee like John G. Roberts Jr. will take us into the uncharted territory of the next 30 or 40 years. The court will no doubt face new and vexing questions about ownership and privacy posed by new technologies, about security and liberty posed by new kinds of threats, about who is a parent and who controls each person’s genetic legacies, and about the place of international law in United States adjudications.

Precisely because we know that we cannot know all that lies ahead, it would be a mistake for the confirmation process to focus on Judge Roberts’s precise views on abortion, the state and religion, and antidiscrimination. The Senate should inquire not as much into how Roberts will vote on these and other issues but instead about how he would approach questions where there simply is no clear answer. Will he say, when there is no clear answer: Leave the issue to the legislature — and thus to the majorities (or special interests) that can work that branch of government? Will he, given the chance, prevent Congress from acting to enforce equality guarantees beyond what the justices themselves have specified? Will he call for deference to states over matters that states simply cannot manage alone, like the place of international law, environmental protection, or the regulation of drugs?

Will this be the kind of person who will honor our deepest commitments: to a democracy, which mainly means majorities, but also to a vision of individual dignity that no majority or bureaucracy can extinguish?

The Senate has the chance to frame a national conversation about the court and our future. For its own legitimacy in uncertain straits, the court should avoid radical swings. The Senate, on our behalf, should make sure that this is a judge who will bring practical wisdom, respect for other branches and the people, and, above all, humility. For only with humility can the people on the court honestly grapple with what will come before them.

Martha Minow, a professor at Harvard Law School, was a law clerk along with John G. Roberts Jr. at the Supreme Court during its October 1981 term.