For those who haven’t noticed, John Roberts has been nominated to the U.S. Supreme Court. The next obvious question is what does his jurisprudence tell us about Mormon theology. As it stands, Roberts is a bit of an intellectual cipher (see this post by libertarian law prof Randy Barnett). We know that he is basically a conservative guy, but he has no corpus of theoretical writings on jurisprudence. In fact, he has even claimed skepticism about the value of theoretical jurisprudence, suggesting instead that each case should be decided on its own merits.
It is not at all clear how seriously we ought to take any of this. Roberts is nothing if not a savvy Washington insider, and he is well aware that in our current legal culture, expressing opinions about ideas is a dangerous thing to do. He may harbor some coherent set of jurisprudential theories — such as Scalia, Thomas, or Breyer, the most theoretically inclined of the current justices — or he may simply be a smart lawyer who will call ‘em as he sees ‘em without resort to theoretical constructs (Kennedy and Stevens are good examples of this, I think). Let us suppose, however, that Roberts is telling the truth and that he really is a theory skeptic.
This is, of course, an eminently respectable position to take, especially within the Anglo-American legal tradition. The continental legal tradition, tracing its roots to the Roman corpus juris civile, and now metastasized through much of the world, has always placed a greater premium on logical consistency and the importance of a coherent ratio juris than has the common law tradition, which has often been content to let the law emerge from the steady accumulation of largely ad hoc decisions. Holmes, that great intellectual pickpocket, claimed that the genius of the common law is that it decides the case first, and supplies the justification afterwards. In other words, the pragmatic solution to problems precedes the elucidation of theory. Theory is always a post hoc attempt to interpret what has happened, rather than a set of first principles from which one derives correct conclusions.
Which brings us to Mormon theology. What is it? One of the bed rock principles of our faith is the belief in modern prophets and continuing revelation. Hence, we insist that God acts in history, and that his Spirit infuses his work here below. From this belief flows a commitment to viewing what are essentially a set of ad hoc decisions and fragmentary texts as evidences of the mind of God. We have some continuum in which canonized texts operate as one pole of divine intervention and other phenomena, such as decisions of Church leaders, personal revelation, and the collective Mormon memory occupy a somewhat lesser status. Mormon theology, it seems to me, is the process of making sense out of these things. Like Holmes’s view of the common law, it is always post hoc, deciding the case first and supplying the reasons after wards. This suggests, in turn, that theology always occupies a secondary place in LDS thought. It is what one does after revelation to make sense of the experience. It is not a set of principles from which one deduces correct answers. Furthermore, because it is post hoc, Mormon theology is always open to revision. It is always open to the possibility that a new revelatory decision will require us to rethink and reinterpret everything. We look to the oracles of the law for change and progress, not to the elaboration of the ratio juris.
Roberts is almost certainly going to be confirmed, and we will get to find out what his jurisprudence is like. He obviously has the brain power to go in either directions. However, for better or for worse, there is a certain Mormoness to his stated understanding of the law.