The confirmation of Judge Sonia Sotomayor is historically momentous but practically uninteresting. The first Hispanic nominee to the Supreme Court meets a senate whose makeup all but assures her confirmation. Yet even anti-climactic nominations provide a rare opportunity within American politics. The confirmation of a Supreme Court justice allows us to contemplate and debate the nature of our regime in ways that escape the day-to-day grind of C-SPAN, MSNBC and Fox News.
Normally, our focus rests on issues such as health care, taxes, education, and abortion. When a Supreme Court vacancy must be filled, our attention goes deeper. What is the role of the Judicial branch as opposed to other branches? What is the basis for making and interpreting law? How should we understand the basis and malleability of our Founding documents?
All of these questions pertain to two overarching inquiries: What is justice and how does it apply to our country? Two answers dominate our national discussion.
The first is the progressive response. This articulation of justice rises out of the Progressive movement which, though tracing back to the late 19th century, still holds the greatest sway in our regime. Here the two foundational assumptions are History and progress. History does not refer to the list of events and persons that occur through time. Instead, capital “H” History speaks to the intellectual, scientific, and moral movement of civilization. As thought and technology change, so does morality. Justice evolves, being true to one understanding at one time and rightly changing at another. Thus as the Founding Fathers determined that man is endowed with inalienable rights to life, liberty, and the pursuit of happiness, so each succeeding generation must make the same choice (though not necessarily the same conclusion). The idea of progress assures the historical school that the movement of history has a somewhat Darwinian appeal: we move toward higher and higher plains of being intellectually and morally just as we do biologically. Though the progress element was severely challenged by the facts of the 20th century, it remains even in a weakened state. This understanding results in the concept of a “living constitution” where our ruling document is only viable as it is re-understood from generation to generation. This view, in various mutations, is the dominant view of the current Supreme Court.
The second response argues for a more transcendent moral compass. It denies that History so contextualizes justice as to determine its very core. History in the sense of specific cultures and situations may necessitate certain actions. But these actions are the application of justice on the part of the statesman, not the determination of an evolving justice. History is not deterministic. The progress made is not assured. And the progress made is toward an unchanging conception of the good founded in something more permanent than History and deeper than public opinion. Most often, this foundation is articulated as the Declaration of Independence states it, “The laws of nature and nature’s god.” This understanding, having only one real proponent on the Supreme Court, pushes for a Constitution anchored by the principles of the Declaration and understood to be timeless articulations of truth.
Sotomayor as a nominee has done little to further these debates. Her past points to a mostly progressive understanding of justice. Her testimony belies a more moderate, though inconsistent, conception. Thus, either her unwillingness or inability to speak to these deeper issues in a fresh or even clear manner indicates she is unlikely to be an intellectual heavyweight on the Court. She will vote predictably but add little more to her position. This makes our opportunity more difficult. If our discussion of justice and our regime will not be furthered by the nominee, we must conduct it not through but around her.
Therefore, the questions remain: Is our constitution an evolving document, meant to be re-understood with the times? Or does it rest on a deeper foundation that does not change? From the Christian perspective, both present problems. Progressives’ changing justice makes truth less the outflow of God’s character and decree and more the result of accident, naturalistic evolution, and unsteady opinion. The man who stands on History will go the way of one who tries to stand firm upon ebbing and flowing tides. The natural rights argument, however, often makes God too deistic, implicitly denying that transcendent truth can remain when God moves history toward the end of the New Heavens and New Earth. God is actively involved in time, working out His plan exactly as decreed before the world began.
Thus the Christian is necessary in this debate. For only the Biblical view, one that recognizes the History of Redemption while maintaining eternal justice, can truly articulate the world as it is. By intelligently participating in these debates, we can fulfill our calling to be salt and light in the world, to seek the good of the city in which we now live.