Passing judgment on America's identity crisis
Jul 5, 2003
Sodomy in the Deep South does not generally preoccupy the elite readership of The New York Times. But the day after the US Supreme Court overturned a Texas law banning homosexual intercourse, the paper emblazoned the news across its front page in the three-inch headlines it usually reserves for military victories and domestic assassinations. It was right to do so. The decision asserted a new constitutional principle: that a longstanding tradition condemning a particular sexual practice as immoral "is not a sufficient reason for upholding a law prohibiting the practice". Dissenting justice Antonin Scalia correctly warned that such a principle leaves laws against prostitution, obscenity, bigamy and adult incest without a constitutional leg to stand on. Gay marriage, which a majority of Americans oppose, appears unstoppable. Meanwhile, in one of two "affirmative action" cases, the court gave the broadest mandate ever to the arcane system of racial favouritism that most Americans view as unjust and counter-productive.
This flurry of decisions in the course of 72 hours has led some Americans to reassess what kind of country they will be living in for the next generation. As such, the court has shaken assumptions about how the 2004 presidential election will be fought. It has set the scene for what could be the most vicious and strident US electoral campaign in living memory.
The problem is not that the nine-member court is too far "left". It is easy to point to decisions that are too far "right". Take California's sending a man to prison for 50 years after three minor arrests, two of them for stealing children's videos, which was held not to violate the constitutional prohibition of cruel and unusual punishment. The problem is rather that the court, meant to interpret the constitution, has jumped the rails of its own constitutional mandate. It has taken over functions that are rightly the legislature's. The big decisions that matter most to Americans - sex, abortion, race, the death penalty - are now made on the bench, with Congress demoted to some kind of glorified budget committee.
We know the court is legislating - not adjudicating - because the shallowness of its legal reasoning is admitted by the very scholars and interest groups who most loudly applaud the political outcomes it produces. Thus Albert Hunt of The Wall Street Journal defends Justice Sandra Day O'Connor's decision on affirmative action while granting that she "will be criticised from both sides for illogical, opaque reasoning". Dahlia Lithwick, Supreme Court commentator for Slate, the online magazine, writes: "She got it morally right, even where she's logically wrong." The legal scholar Jeffrey Rosen, best known as a defender of civil liberties against the court's encroachment, warns that in the Texas sodomy decision, "the Court embraced and extended a sweeping and amorphous right to sexual liberty" that is hard to locate in either "the text or history of the constitution".
The court's results-oriented adjudication goes under the euphemism "legal pragmatism". Starting with Roe vs Wade - the 1973 decision that absolved politicians of having to pass general legislation on abortion - Republicans have tended to oppose it, Democrats (tacitly) to embrace it. In 1987, the Supreme Court nomination of Robert Bork, Yale legal scholar, was rejected by a Democrat Senate - not for lack of qualification but for lack of respect for Roe. In the 2000 election debates, Al Gore became the first presidential candidate to vow that he would nominate justices based as much on their ideology as their qualifications.
Yet it is George W. Bush who could be the biggest loser from the Supreme Court's recent arrogation of powers. Even if the court's role in the 2000 elections - blocking Mr Gore from selectively requesting recounts in hand-picked Democratic constituencies - was a proper one, its justices never arrived at a common justification for their intervention. This tainted Mr Bush's victory and implicated him in judicial activism. Worse, it radicalised Democrats, transforming loyalists into activists and organisers. Public reminders of Bush vs Gore do not help the president.
Now Mr Bush faces political problems with the court itself. The nine current justices have served longer without a vacancy than any court in 180 years. There is likely to be at least one retirement before the election and the Senate will confirm all new judicial nominees. Every senator knows the stakes of the new dispensation: nominating justices means nominating one's legislative masters. So senior Democrats have demanded "meaningful consultation" on the next justice and threatened to block anyone who would "turn back the clock". That means no conservative justices. Full stop. If, on the other hand, Mr Bush should nominate a liberal from his own circle - such as Alberto Gonzalez, his affirmative-action-praising White House counsel - he could face a revolt within his own party. The same holds if, as rumoured, he elevates Mrs O'Connor, the author of the affirmative action decision, to chief justice,
Even if Mr Bush escapes a court retirement, he faces formidable short-term problems. Gay groups will be seeking marriage rights in Massachusetts and other states. Last week Bill Frist, the Senate majority leader, a moderate Republican, proposed amending the constitution to stop gay marriage - a move that has panicked Mr Bush. "This is a matter for lawyers to assess," said Ari Fleischer, his spokesman. (Not in a democracy, it isn't.) Such an amendment could pass and a battle between its supporters and detractors would rally Republican activists. But that kind of "culture war" rallying is just what Bush seeks to avoid, since it would scare the more politically liberal constituencies - particularly Jews, Hispanics and suburban women - that he has been wooing.
The president's problem is that the court's decisions have brought into focus an identity crisis in the country at large - one that has deepened since September 11 2001. The US is now engaged in a war that its citizens believe in passionately. They just cannot decide whether it is in defence of the beleaguered values and traditions of the Christian west, or of the right to climb into bed with whomever you like.
The writer is a senior editor at The Weekly Standard