First came Bush citing Antonin Scalia and Clarence Thomas as his model for future court appointments, because Scalia and Thomas believe in convenient interpretations of “original intent” to decide issues. Roberts hasn’t admitted to or boasted of being an originalist, though, instead saying in written comments during his 2003 federal appeals court confirmation that:
I do not have an all-encompassing approach to constitutional interpretation; the appropriate approach depends to some degree on the specific provision at issue. Some provisions of the Constitution provide considerable guidance on how they should be construed; others are less precise. I would not hew to a particular ‘school’ of interpretation, but would follow the approach or approaches that seemed most suited in the particular case to correctly discerning the meaning of the provision at issue.
This is very reassuring, if one can get past suspicions raised by Bush nominating him at all. It doesn’t help when conservative religious kingpins such as Tony Perkins, of the Family Research Council, says “The president is a man of his word. He promised to nominate someone along the lines of a Scalia or Thomas, and that is exactly what he has done.”
Belief in Biblical inerrancy is a warning sign that beats even belief in the right’s version of original intent, and Roberts certainly hasn’t come out espousing inerrancy.
This isn’t all that reassuring, though, remembering what Bush said in the summer of 2002:
We need common-sense judges who understand that our rights were derived from God. Those are the kinds of judges I intend to put on the bench.
And for some reason Sen. John Cornyn (R-Texas) gets angry at Sen. Richard Durbin (D-Ill.) for asking Roberts about his religion because “We have no religious test for public office.” Cornyn should be at least equally angry with Bush for appearing to violate Article 6 of the U.S. Constitution. (Whether Bush actually did violate the Constitution is up for debate, but Roberts is described as being a devout Catholic. One almost begins to hope Bush is as bad at vetting Supreme Court justices as he is at vetting leaders for Homeland Security and the Federal Emergency Management Agency.)
Where this comes together, raising all sorts of alarms, is in a 1992 case called Lee vs. Weisman, in which Roberts wrote:
History suggests that listening to a religious invocation at a civic ceremony was seen not as an establishment of religion by the government but, on the contrary, as an expression of civic tolerance and accommodation to all citizens.
It is hard to imagine what Roberts meant by this, especially given the reasonable assumption that he is familiar with the constitutional clause promising equal protection of the law. How can a religious invocation at a civic ceremony offer accommodation to citizens who don’t believe in God? By definition, a religious invocation has no role at a civic ceremony, just as a mayoral vote or similar civic function has no role at a church ceremony. Religious invocations are allowed because they’re popular, not because they’re right, and that’s exactly the constitutional problem with them.
It’s hardly reassuring that to argue for religion at graduation ceremonies Roberts looks to “history” rather than the Constitution itself, but it’s interesting that he looks to history rather than to “intent.” Keep an eye on how his decisions rove between these three justifications — enabled by his, um, catholic way of discerning “an appropriate approach” to a case in a justification that suddenly seems even more sinister than straight orginalism.
History suggests many things, including many abhorrent to modern people. Roberts’ abuse of history in this instance makes it seem as though Bush has, indeed, done exactly as he promised for his conservative constituency, and that’s hardly an accommodation for us citizens who reject religion’s role in our government.
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