Save on rare occasions when a crisis loomed or a personal interest was at stake, it was once possible for the average citizen to ignore the musings of Supreme Court justices. Those days are long gone. For 50 years or more, the Court has been up to its eyeballs in political and cultural matters, empowering itself at the expense of the elective branches and the states and, in general, making itself impossible to be ignored. If there is an issue of national importance that the Court cannot influence in some significant way, it is hard to say what it might be.
The Court’s decisions affect not only technical legal matters, but as well the moral principles that define American political culture. It has, in short, acquired enormous power over how we live our everyday lives. Such matters were once controlled by our elected representatives, but elected office-holders now take judicial supremacy for granted and defer, almost routinely and without cavil, to the courts. The Supreme Court, for its part, appears to think that representative government is a bit of a nuisance. It gratuitously assumes that it is empowered to issue final, authoritative opinions about virtually every sensitive issue of public policy. It can exercise that authority anytime it wants simply by declaring that a policy interferes with constitutional rights, whose nature, number, and meaning are entirely within the Court’s control.
The most egregious example of judicial overreaching is, of course, Roe v. Wade, where the Court nullified every abortion law in the country at a single stroke. In their place, the justices in effect substituted a detailed statutory alternative of their own and imposed it on the entire nation. The result has been an unmitigated moral, legal, and social disaster. As was said of the infamous Dred Scott decision defending slavery, Roe was worse than a crime, it was a folly. You wouldn’t know that from reading the majority’s opinions on abortion, which have sustained and encouraged ever more barbarous abortion procedures. You will read nothing there about the slaughter of innocent human beings, the destructive impact on the lives of women who have had abortions, or the shameful debasement of the nation’s moral life.
What you will read is a lot of high-toned natter about the so-called rights to privacy and personal autonomy. If this were just philosophical shop talk, we could perhaps let it pass. But the Supreme Court exercises real power, and when it says that the Constitution enshrines a right of personal autonomy, we have a great deal to worry about indeed. What the Court means is that everybody is entitled to make his own moral rules; since morals are essentially a matter of personal preference, no one is entitled to “impose” his morality on another. A more radical constitutional doctrine can scarcely be imagined. It destroys the basis for all public morality. Our laws are chockfull of moral impositions. That is what civilization is—the preference of one way of life over another, the authoritative public declaration that certain actions are right or wrong. The apostles of moral autonomy, however, say that government has no business making moral rules except to protect one man’s rights against another’s invasion.
That argument has been aggressively advanced by homosexual rights advocates, and it has just been formally embraced by the Supreme Court in the Texas sodomy case. The Court held that moral and religious opinion cannot overcome the claims of individual autonomy when it comes to intimate relationships. The legitimation of homosexual marriage will come next: Marriage rests precisely on moral understanding concerning what is good for the human person, and if that understanding cannot sustain laws against homosexual sodomy, it won’t suffice to protect the traditional family. Indeed, autonomy threatens not only the family, but the foundation of all laws dealing with moral behavior.
The opinion’s author was Justice Anthony Kennedy, a Catholic, who has nevertheless become the most outspoken defender of moral autonomy on the Court. Significantly, he appears to have come to his position by thinking about abortion rights, of which he is also a leading advocate. You can read his opinions on abortion and homosexual sodomy from beginning to end without encountering even a trace of a reasonably well-formed Catholic intellect. How is it that a man born and raised in a Catholic home and educated in Catholic schools can be so utterly ignorant of, or hostile to, Catholic moral teaching?