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If Judge John G. Roberts Jr. were to be confirmed as an associate justice of the U.S. Supreme Court, there is hardly any question that he would be competent at analyzing the facts of a case, finding the pertinent law, applying the law to the facts and writing a cogent opinion. That is not where the potential for danger lies. The real question is whether he believes that in the voting process, values extrinsic to the intellectual content of the case may be considered. Put more bluntly, we should learn now whether there is any likelihood that when he decides to agree or disagree with the other justices, he might ever seek to propitiate specific groups or causes. This is not an idle question, because there is solid evidence that incumbent justices have engaged in just such a process. In Printz v. U.S., 521 U.S. 898 (1997), the Supreme Court held that certain portions of the Brady Handgun Violence Prevention Act were unconstitutional. According to the court, the principle of federalism and the terms of the 10th Amendment precluded Congress from requiring “chief law enforcement officers” of the states to perform background checks on individuals shopping for guns. However, in a concurring opinion, Justice Clarence Thomas made clear that his vote was cast to protect the rights of gun owners. Although the petitioner sheriffs made no argument about the personal right to keep and bear arms, that was the sole subject of Thomas’ concurrence. Moreover, he announced that when that issue is raised in the future, he intended to vote in favor of a personal right to keep and bear arms. Similarly, in Lawrence v. Texas, 539 U.S. 558 (2003), where the Supreme Court ruled, 6-3, that a state may not criminalize homosexual behavior, Justice Antonin Scalia went much further than registering a mere dissent. Venting half of his fury on Roe v. Wade, 410 U.S. 113 (1973), as a precedent, Scalia reserved the other half for homosexuals, in general. “Today’s opinion,” wrote Scalia, “is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Id. at 602. Moreover, not content with having clearly voted on the basis of his own personal beliefs, not to say prejudice, Scalia also had the cynical effrontery to accuse the majority of issuing a result-oriented decision. Establishment clause exception? Most recently, drawing a casuistic distinction between a display of the Ten Commandments in a classroom and the Ten Commandments literally carved in stone on a monument outside the Texas State Capitol, a majority of the court approved the latter. Van Orden v. Perry, 125 S. Ct. 2854 (2005). In his majority opinion, Chief Justice William H. Rehnquist viewed the establishment clause as excluding Moses, who, he opined, was not only a religious figure but also a “lawgiver.” Id. at 2862-2863. According to the dissent by Justice John Paul Stevens, the majority of the justices were expressing their faith in this country’s “Judeo-Christian” tradition. The fact that Jews are included still kind of leaves the Hindus, the Buddhists, the Muslims and the atheists somewhat in the lurch. Id. at 2881. Stevens might also have observed that by identifying with the Judeo-Christian message, the chief justice was implicitly creating a religious test for judges, in violation of Article VI, Paragraph 3 of the Constitution. Most extraordinary was the vote of Justice Stephen G. Breyer, who concurred in the judgment, but importantly, did not share the analysis of the chief justice. Exquisitely equivocating, Breyer opined that the monument conveyed both a religious message and a secular moral message about proper standards of social conduct, i.e., “serving a mixed but primarily nonreligious purpose.” Id. at 2871. Since the Ten Commandments prohibit worship of any other God but the God of the Jews; forbid the depiction of “graven images” and require observance of the Sabbath, Breyer was saying that construing these rules as precepts of moral conduct is not an “establishment” of religion. In George Washington’s famous letter to the Hebrew Congregation of Newport, R.I., dated August 1790, the newly elected president wrote, in part, that “the Government of the United States . . . gives bigotry no sanction, to persecution no assistance.” Washington referred to the Jews as “children of the stock of Abraham.” The irony of this phrase is that the Muslims, whose understanding we need now more than ever before, while not part of the Judeo-Christian culture, are also “children of the stock of Abraham.” Harvard Hollenberg is a writer and a lawyer.

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