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Evan Wolfson: ON THE HORIZON: Order and the Courts

Freedom to Marry E-Update Issue #1
September 7, 2005

The death of Chief Justice William Rehnquist, at the end of last week, like the unfolding tragedies in the wake of Katrina, underscores the stakes of getting involved in shaping the government we want and need. Quite simply, it matters who is making the decisions about what our government does — and it matters what their philosophy of government is and whether they have a commitment to the liberty, equality, and pursuit of happiness that are our birthright.

So far, as the Senate prepares to debate Judge John Roberts's nomination to the Supreme Court, we've only had pieces of information about Roberts's philosophy and political orientation, many of them troubling. We've learned that in memo after memo, on front after front, Roberts advocated a cramped and narrow view of what government can and should do to promote the equality, opportunities, and well-being of all Americans, particularly the vulnerable and the different. And although, while in private practice, Roberts provided some pro bono assistance in an important gay rights case, Romer v. Evans, it's hard to know what to make of that.

As George W. Bush pursues his stated goal of turning the courts to the right for decades to come, all of us must insist that the Senate fulfill its duty of ensuring that any nominee to the Supreme Court has a commitment to three basic American principles:

• Liberty — Does the nominee see the Constitution as embodying a right to personal freedom in important choices, also called the right to privacy or personal autonomy, with which government may only interfere if it can show sufficient justification beyond mere majoritarian disfavor or "morality"?
• Equality — Will the nominee defend the full and equal rights and inclusion of minorities as well as the majority, assuring justice for all and non-arbitrary treatment?
• Strong and independent courts — Is the nominee willing to fulfill the legitimate and vital role of the courts in standing up to legislative or executive excesses, or prejudices of the majority or passions of the moment, as an independent check and balance vindicating constitutional rights for all Americans?

As we scramble to offer relief to the victims of America's most recent disaster, and demand answers to the political decisions and government policies that exacerbated it, it's important to keep at least one eye on the prevention of another disaster. We should all urge our Senators, the media, and other leaders to press John Roberts, as well as whomever Bush nominates next, on these core duties. The burden is on the nominees to show that they are not seeking the seat in order to impose their own ideology, or a crabbed view of the Constitution, on Americans. No candidate should get a free pass to the Supreme Court without showing a commitment to liberty, equality, and the vital role of the courts.