The present Supreme Court shows a disturbing inconsistency. Keith Fournier offers insight into the root problem: the lack of a coherent jurisprudence—or legal philosophy—to guide the decisions of the court and of each justice’s deliberations. A constitutional lawyer with experience before the Supreme Court, Fournier proposes a Catholic jurisprudence, founded in the first place on the inviolable human dignity of every human person and supported by principles of natural law and subsidiarity. This is the true path to achieving “justice for all.”

I have practiced law for twenty years.

However, I tire of the talking heads and their efforts to assess the Rehnquist Court—be they self described "liberals" or "conservatives." The very use of such labels reveals a deeper problem.

Abysmal is a word that more accurately fits some of the decisions from this past term, but even more accurately, the lack of any coherent foundation behind the opinions. The word means unfathomable, immeasurable, and extreme. This Supreme Court is just that. It lacks any cohesive framework of jurisprudence.

A Few examples:

*This Supreme Court struck down the legitimate efforts of a state to regulate the suctioning of baby brains after partial delivery—so called "partial birth abortion." They ruled that such a means of killing a child was a "right" within the meaning of the new "right to privacy" created by the decision in Roe vs. Wade.

*This Supreme Court upheld the Boy Scouts’ decision not to hire self-professing, active, practicing homosexual men to oversee boys at Scout camp. However, they avoided the activist intention of the homosexual rights lobby which helped to finance the litigation by skirting their efforts to define the engaging in sexual acts outside of marriage, with other men, as a civil right. Instead, they based their opinion on the fact that the Scouts were a "private" organization—they did not accept public money—therefore they could do as they choose. A judicial maneuver simply intended to avoid social controversy.

*This Supreme Court struck down student religious speech at football games as an apparent threat to the republic and its good order—but let stand a "bubble zone," created out of whole cloth, which prevents the exercise of legitimate free speech outside of abortion facilities due to its content.

Very few people have addressed the real problem. This Supreme Court lacks a coherent jurisprudence—a governing legal philosophy.

As we move into the real start of this presidential campaign, after Labor Day, the make up of this Supreme Court is a vital issue in this campaign. The next president can either move the Supreme Court toward a recovery of jurisprudence, or set it on an even more dangerous path of patchwork decisions that provide no stable foundation for justice.

We have some modern "liberals" claiming that the issue is the absolute sovereignty of the individual to do whatever he or she chooses. However, the careful crafting of words, calling license "liberty" or killing "choice," does not make right what is wrong. Nor should a Supreme Court create new "rights" to respond to the pressure.

Then there are some modern "conservatives" espousing a new form of "states rights" or "strict construction" of the Constitution as the issue. However, states don't have rights—neither do federal governments—people do. The Constitution, like all legal documents, is the product of a free people with a history within which it must be understood.

Modern "liberals" often mock modern "conservatives" in the latter's apparent distrust and near disdain of government. They goad some conservatives by using their own rhetoric against them (e.g., "keep the government out of my bedroom" and “my womb") as they argue in support of an unrestricted "right" to abortion and "right" to whatever we please.  
Well, perhaps the reason they have gained traction in this effort is that much of what is called "conservative" today lacks a coherent person and family-centered philosophy or any real understanding of our obligations of human solidarity and social justice. "Conservatism" has become simply a protection of the "status quo"—including protecting a so-called right to abortion—by not addressing the flawed legal analysis, errant history, and unscientific "science" behind the rationale of "Roe vs. Wade."

In fact, it seems that modern conservatism believes that devolving that issue back to the states will somehow "solve" the problem. Nonsense!  We will once again be faced with "free states" and "slave states."

Additionally, some contemporary conservatives do seem to decry any government—forgetting that we govern ourselves everyday through our families and in our mediating institutions and associations.

Government is not intrinsically evil.

Its absence does not bring freedom but anarchy.

Modern conservatives have often backed themselves into a philosophical corner and have little rejoinder to many of the liberals’ ill-intended attacks. They are intellectually bankrupt. There is a proper role for government.

Modern liberals often affirm the "right to choose" almost anything, and resultantly espouse and live a duplicity that is unimaginable—affirming their care for children outside of the womb, while they sanction the killing of children six inches from birth.

Their definition of government starts at the top and works down. They are more "statists" than liberals—proposing large federal programs as the cure-all to social ills and often undermining the first government—the family.

In the growing ambit of their advocacy of an unfettered "right to choose," what will be the next choice to be championed? The killing of the unfit outside the womb?

What we desperately need is a revival of an authentic natural law jurisprudence that has as its polestar the inherent dignity of every human person from conception to natural death—a jurisprudence that understands the difference between a person and an individual. It will take Christians to re-present all of these concepts. After all, they were birthed from a Jewish and Christian worldview and anthropology.

A person is only a person in relationship. We were made to give ourselves to the other. That is why the starting point of a truly just public policy must be the primacy of the person and the family. We are by nature social—and we become who we are through the exercise of our choices—both individually and as societies.

"States rights" repackaged just will not solve our current cultural crisis. This is what gave us Bull Connor and segregation. It will give us fifty versions of abortion and euthanasia. There are some choices that simply are wrong. Owning people as property is wrong—always. Killing them before they can speak is as well.

"Strict Construction" is no panacea either. It may be preferable to the current confusion wrought by a judicial activism devoid of a polestar of natural justice, but fifty interpretations of an unjust law are worse.

What we need is a recovery of an authentic understanding and application of natural law jurisprudence and a re-presentation of concepts such as the common good—not shriller rhetoric from the political sides and incoherence from the bench.

This is precisely why a new Christian intellectual movement—neither "left" nor "right"—"liberal" nor "conservative"—is so desperately needed. A true recovery of classical Christian thought, offered to promote "the common good," can help us to build a truly just society. After all, is that not part of the Christian mission?

This term of the highest Supreme Court of the land was abysmal not because the Supreme Court is "liberal" or "conservative," but because it lacked a foundation of authentic justice. What we truly need are "public servants," leaders who can pull us out of the abyss, by appointing men and women to the bench who understand justice.

We also need Christians who take their heads out of the clouds and put their hearts into serving all of those for whom Jesus came by rediscovering public service as a calling and beginning to understand the social mandate of the Gospel.

Copyright © 2000 Keith A. Fournier

Keith A. Fournier, a graduate of the Pontifical Pope John Paul II Institute For Studies On Marriage and Family, and the founder of the "Common Good Foundation" and the "Liberty, Life and Family Institute," currently serves as Executive Editor For Catholic Affairs for Christianity.com. A Catholic Deacon, Fournier is also a constitutional lawyer and is the author of seven books, including A House United? Evangelicals and Catholics Together: A Winning Alliance For the 21st Century. A happily married man, Keith and his wife Laurine are the proud parents of five children.

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