“The highest deference.” That was the phrase U.S. Supreme Court Justice Ruth Bader Ginsberg used late last year to describe the degree of respect in which state law and decisions of state supreme courts should be held by the tribunal on which she sits. It was the phrase David Boies, attorney for the Gore campaign, used in defense of the judicial mavericks on the Florida Supreme Court who had made up their own legislation time and time again. It was the phrase Al Gore and Joseph Lieberman used in the same context, almost reverentially: “The highest deference.”
As applied to the Gore team’s efforts to steal Florida’s 25 electoral votes from George W. Bush, “highest deference” was taken to mean that the Florida Supreme Court had been given a great deal of latitude by the Florida legislature in the interpretation of the Sunshine State’s election laws, especially in the protest and contest phases of disputed elections. It was incumbent, the Gore team argued, for Bush and his supporters to demonstrate their commitment to the principle of federalism by letting the highest court of the state of Florida interpret and apply that state’s election laws. Anything else, they argued frenetically, was a violation of the doctrine of states’ rights.
That newfound invocation of the doctrine of states’ rights by committed centralizers raises a number of very interesting questions.
First, if the “highest deference” is to be given to state law and decisions of state supreme courts, then most of the holdings of the Warren Court (1953–69) would have to be overturned immediately, as most of those holdings — especially as they related to criminal due process — reversed state law and state supreme court decisions, applying various provisions of the Bill of Rights found in the U.S. Constitution to state governments.
Second, if the “highest deference” is to be given to state law and decisions of state supreme courts, then the Supreme Court would never have ruled, as it did in Griswold v. Connecticut, that a state statute banning the sale of contraceptives to married couples is unconstitutional. The court would never have strained to find “penumbras” emanating from “shadows” cast by various provisions of the Bill of Rights. Even Justice Hugo Black understood at the time that the majority on the court was involved in an arbitrary judicial amending of the Constitution.
Third, if the “highest deference” is to be given to state law and decisions of state supreme courts, then why, on January 22, 1973, did not the U.S. Supreme Court pay such deference to the Texas law that forbade abortions in most instances? The court’s holding in Roe v. Wade invalidated laws passed by 33 state legislatures. It was the most sweeping example of judicial review and of the application of the Fourteenth Amendment’s due process clause to state governments in American constitutional history. “The highest deference” was not paid to such state laws. Indeed, as Bob Woodward and Scott Armstrong pointed out in their 1979 book, "The Brethren," six of the court’s nine justices in 1972 wanted to find a way to permit abortion. They just had to figure out a way to do so. “The highest deference” was not paid to state laws that forbade abortion (either totally or partially) prior to Roe; and the “highest deference” has not been paid to state laws that have attempted to conditionally ban the killing of preborn children by means of dilatation and extraction, that is, partial-birth abortion.
We live in a world where slogans replace rational thought. A phrase such as “highest deference” does indeed have a meaning in a jurisprudence rooted in the natural law. However, its application has been distorted both by conservatives and liberals.
Many conservatives, for their part, have the tendency to deify state governments and the laws they promulgate. However, the plain fact of the matter is that during the past two centuries many state legislatures pioneered the road to legal positivism. It was state legislatures that passed laws in the nineteenth century establishing state-sponsored schools and giving bureaucrats the power to determine educational standards, thereby preempting the natural-law right of parents to be the principal educators of their children. It was state legislatures that passed laws at the end of the nineteenth century liberalizing divorce, something that the founding Bishop of Fargo, North Dakota, the Most Reverend John Shanley, fought with all his might in his own state. It was state legislatures (California, Hawaii, New York) in the twentieth century that began to decriminalize abortion, permitting abortion-on-demand. It has been state legislatures in the past few years — most notably, Vermont — that have been attempting to provide legal recognition to “same sex unions.” And Oregon has a law, enacted by means of a popular referendum, that permits “doctor-assisted” suicide. Should the “highest deference” be paid to those measures simply because they are recognized as legal?
Those things are right down the liberals’ alley. They are centralizers when it suits them, but they also want the “highest deference” to be paid to state laws and state supreme court decisions that favor statism and collectivism and all manner of social engineering. In the latter part of 2000 they evinced a decided tilt in favor of a state supreme court’s complicity in the stealing of a national election. “The highest deference” is a phrase liberals invoke selectively and hypocritically.
Lost in the debate is the simple fact that the highest deference is not to be paid to laws passed by any human legislature. The highest deference is not to be paid to decisions of any particular court. The highest deference is to be paid to the primacy of the binding precepts of the Divine positive law and the natural law as the basis of all civil law and of all judicial decisions. No legislature and no court have any authority to transgress the bounds of the Divine positive law and the natural law.
Thus, state legislatures have no authority to pass laws superseding the authority of parents to educate their children as they see fit. They have no authority to permit divorce or contraception or abortion or sodomy or euthanasia. Human law must be subordinated to the law of God, expressed as it is in Divine Revelation and in the law that is written on the flesh of all human hearts, the natural law. Deference to the highest of authorities is required of all judges on all courts in all countries in all circumstances at all times.
This would be a decidedly different nation and world if lawmakers and judges heeded the deference they are duty bound to pay to the unchanging standards of objective justice founded in truth. As long as the highest deference is not paid to God’s law, however, we will continue to justify abject evils under one false pretext after another. And if we can do that, my friends, what’s the big deal about using a court to try to steal an election?
The state of contemporary law — including law in the United States of America — is the result of the chaos unleashed as a result of the Protestant Revolt. Theological relativism begot moral relativism. Moral relativism begot legal positivism. Legal positivism has begotten statism and state-sponsored atheism. The only remedy for all of it is for all civil authorities to recognize that our Lord is the ultimate Lawgiver, and that His Vicar, the Successor of Saint Peter, is the only one who speaks authoritatively and infallibly on matters of fundamental justice. It will not be until nations and their institutions of civil governments pay the highest deference to the authority vested in the Vicar of Christ that the administration of justice will be ordered rightly to the pursuit of the common good.
Our Lady, Mirror of Justice, pray for us.
Thomas A. Droleskey, Ph.D.
For past columns in The DAILY CATHOLIC by Dr. Droleskey, see Archives