The Magazine

A Supreme Mess at the Supreme Court

Clintonism has infected the judiciary, too -- principles are out, partisanship and attacking your adversaries are in

Jul 17, 2000, Vol. 5, No. 41 • By JEREMY RABKIN
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With a jumble of controversial rulings at the end of June, the Supreme Court offered its last pronouncements of the Clinton era. By the time the Court hands down any major new rulings, a new president will be in office. Perhaps the timing encouraged the justices to let themselves go. Taken together, the Court's various rulings display about as much respect for the dignity and authority of the law as -- well, as the Clinton White House has shown in the past few years.

Even the most elemental consistency seemed beyond the Court's reach. Extending its concern for "expressive activity," the Court found the Boy Scouts were entitled to exclude homosexual scoutmasters because this exclusion was somehow an exercise of free speech, even if the Scouts said nothing about it in public and the homosexual scoutmaster agreed to say nothing about sex while serving his troop (Dale v. Boy Scouts of America). But in another ruling handed down the same day, the Court found that free speech does not guarantee pro-life demonstrators the right to distribute literature outside an abortion clinic (Hill v. Colorado) -- a break with precedent that points in exactly the opposite direction.

In another controversial ruling, the Court insisted that students could not be allowed to organize a ceremony at a football game, since past experience suggested the students might choose to include some form of prayer at the ceremony (Santa Fe Independent School District v. Doe). But the Court found it entirely acceptable for public school officials themselves to distribute computers and other equipment to avowedly religious private schools (Mitchell v. Helms). Whatever.

True, it was not the Court as a whole or even the same majority that voted for these contradictory results. In every case that sharply divided the Court, the result was determined by the shifting vote of Justice O'Connor. The Court was essentially at the mercy of O'Connor's mood. It is a waste of time for legal scholars to seek an underlying logic in the resulting pattern. For satisfactory explanations, we must await the findings of psychobiographers, after they gain access to the justice's personal papers.

But O'Connor's wrestling with her inner voices is only part of the story. Justice O'Connor exercises so much sway because the Court is so divided. This Court has great difficulty reaching stable consensus on the big issues, and the rival blocs are content to piece together the narrowest majorities -- when they can -- from one issue to the next.

This sort of brokering must be demoralizing. And some justices seem to have reached the limits of their patience with it. In Dickerson v. United States, Chief Justice Rehnquist did speak for a seven-person majority in holding that police must continue to read suspects their Miranda rights because that Warren era requirement is now too established to be questioned. Justice Scalia's dissent noted that at least three justices in this majority had themselves questioned Miranda in the past decade, so the Court was striking down a federal statute (allowing exceptions to the Miranda rule) without an actual majority of justices' believing that the Constitution required this result. Scalia pointedly did not use the customary closing line, "I respectfully dissent." His opinion drips with too much contempt to include the word "respect." Instead, Scalia closed his dissent by insisting that in all future cases he will treat the federal statute as still in force and the Court's ruling -- endorsed by seven justices -- as of no effect.

Only Justice Thomas joined this particular declaration of unalterable defiance. But the Court's liberal bloc (Stevens, Souter, Ginsburg, and Breyer) has its own version of non-conformity. In rejecting the Court's two major rulings on states' rights earlier this year, they proclaimed that they regard all the precedents underlying these rulings as illegitimate and not binding upon them, even though these precedents now go back almost a decade. Scalia's stance may be more principled, but one way or another, a majority of the Court is now on record defying the decisional authority of the Court itself.