Craig Parshall, General Counsel


Supreme Pragmatism and the
Death of the Law

October 6, 2010

As the nine members of the U.S. Supreme Court mounted the bench this Monday to commence its new term, big media highlighted some predictable aspects of the Court. In the Sunday edition of The Washington Post, the presence of three female justices topped the article, followed by a query about the supposed “partisan” divide on the High Court. The New York Times zeroed in on the court’s “interests and biases”; it made the suspect argument that the current court, led by Chief Justice John Roberts, supposedly has “championed corporations,” though the case cited by The Times was actually a situation where the Court prevented Congress from banning non-profit organizations from exercising their free speech rights before an election. I noticed one aspect about the Supreme Court, however, that is not likely to surface in any of the mainstream media: the creeping influence of legal “pragmatism” as the guiding philosophy of several members of the Court.

This issue surfaced recently as Justice Stephen Breyer (the likely new leader of the liberal branch of the Court) was promoting his new book, Making Our Democracy Work: A Judge’s View. Justice Breyer opined that traditional legal concepts should be “in service of a pragmatic approach to interpreting the law.” In other words, the Court should place great weight on the “purposes and consequences” of a particular law or constitutional principle in ruling upon it. That may sound innocuous, but it isn’t. By placing inordinate emphasis on the social consequences of a particular decision, it helps nudge the law away from the Judaeo-Christian foundations that undergird our legal system in the first place. Two examples suffice to show the drastic result.

In 2003, a closely divided Court in Lawrence v. Texas struck down a Texas law that criminalized homosexual conduct. The majority noted the alleged “emerging” trend of acceptance of homosexuality in our legal culture as a reason to rule that the Constitution forbids such a law. It also noted the consequences of laws outlawing homosexuality: the Court reasoned that such laws would be “an invitation to subject homosexual persons to discrimination …” As is usually the case, this kind of approach sends our constitutional jurisprudence sailing away from the presuppositions that our Framers used as an anchor. The majority in Lawrence pointedly attacked the reasoning of Justice Warren Burger in a strikingly similar homosexual case decided by the Supreme Court back in 1986, which had arrived at an opposite result. Justice Burger had noted the “Judeao-Christian” roots of America’s cultural and legal disapproval of homosexuality, a concept that current Justices Kennedy, Breyer, and Ginsberg overtly rejected as an inappropriate basis for constitutional law in Lawrence. That rejection will most assuredly also be shared by newly appointed Justices Sotomayor and Kagan. Then in June of this year, the Supreme Court decided Christian Legal Society v. Martinez, a case that held that Christian organizations can now be lawfully barred from official recognition on university campuses whenever they decide to stick to their faith-based beliefs rather than accede to reigning notions of campus “political correctness” (that was the phrase used by Justice Alito in his dissent).

The philosophy of pragmatism creates these kinds of results. But then we shouldn’t be surprised. It was originally minted by American philosophers Charles Sanders Pierce, William James, and John Dewey, who may have differed in details, but who collectively believed that truth and values are derived entirely from empirical, scientific observation of our social circumstances (translated: that which is “politically correct”) and not from any transcendent moral or spiritual foundation. Applying this kind of approach to the Supreme Court, the question is not whether this direction can kill the idea of constitutional law as our Founders intended, but is rather only a question of when.