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.

The feuding blocs on the Court don't even bother to conceal their underlying political differences and don't let mere legal argument get in the way of their political biases. In Dale, Justice Stevens's dissent rattles through some serious claims about the majority's handling of precedent and then devotes itself to belaboring the general evil of bigotry against homosexuals. "Like the equally atavistic opinions about certain racial groups," he concludes, these attitudes "have been nourished by sectarian doctrine." Even then, he isn't quite done. He can't resist dredging up a 1978 opinion by Chief Justice Rehnquist of no real relevance to this case. But Rehnquist authored the majority ruling in Dale and also wrote an angry dissent in the Santa Fe District prayer case, protesting that the majority opinion (by Stevens) "bristles with hostility to all things religious in public life." So in closing his dissent in Dale, Stevens wanted the record to show that Rehnquist, the defender of religion, had once compared gay activists challenging a university ban on their organization to a group of measles sufferers challenging a health quarantine. Get it?

The three other members of the liberal bloc in Dale thought it necessary to offer a separate dissenting opinion. They wanted to clarify that when, in the future, groups claim the right to exclude unsuitable members, "our estimate of the progressive character of the group's position will be irrelevant to the First Amendment analysis." This sort of disclaimer is tantamount to a confession. The judges don't bother to preface it with "needless to say," and it assuredly wasn't needless: They all signed their names to the belligerent affirmation of "progressive" pieties in the Stevens opinion anyway.

In Stenberg v. Carhart, the partial-birth abortion case, Justice Ginsburg wrote separately (in an opinion joined by Stevens) to emphasize "amidst all the emotional uproar" that Nebraska's law "does not save any fetus from destruction," because the law permits alternative procedures to terminate late-term pregnancies. Since the Court's past rulings require states to leave some alternative when the life of the mother is at stake, the argument makes no sense: Ginsburg would have been the first to protest if Nebraska had closed off the less grisly alternatives. Ginsburg's point here is simply a jibe at the supporters of the ban. This is a Court where such jibes come readily to the justices. They are not appeals to the reason of future justices. They are assurances to current political constituencies that the individual justice is reliable -- and that justices on the other side of the case are not.

The abortion rulings do epitomize the Court's problem. Justice Kennedy's dissent lamented the majority ruling in Carhart as a betrayal of the Court's 1992 ruling in Planned Parenthood v. Casey. That case was supposed to achieve a grand settlement in the abortion debate: The plurality opinion of Kennedy, Souter, and O'Connor, insisting that the country must put aside its two decades of dispute on Roe v. Wade, reaffirmed the right to abortion while still allowing some regulations reflecting state concern for pre-natal life. This year, however, Souter and O'Connor fell back into line and endorsed the most extreme positions of abortion rights activists: Nothing must stand in the way of abortion -- not even, as in Hill v. Colorado, the constitutional guarantee of free speech.

But, after all, the Casey ruling was in 1992. Back then, we heard a lot about "New Democrats," who would transcend stale debates by combining activist government with sensible centrist concerns, showing themselves tough on crime, tough on welfare, tough on racist ranters like Sister Souljah. That seems a long time ago. By 1998, we were down to the most rancorous appeals to core Democratic constituencies to save the country from the "Clinton-haters" and "the Christian Right." And they worked -- as much as they needed to work. The country demanded that we just "move on."

One can't help feeling that the current Supreme Court has read the lesson -- or at least, that it lives in the same world. Core constituencies must be served. How it looks doesn't much matter because the country isn't looking for consistent principles.

And probably it isn't. We went through two days of media post-mortems after the Court's rulings on these cases came down. Liberals complained about some and conservatives complained about others and we now move on -- very quickly. Vice President Gore made a ritual appeal to abortion enthusiasts, warning that a Bush victory could lead to an anti-abortion majority on the Supreme Court. Governor Bush made his perfunctory complaint against Carhart and eagerly shifted his attention to unrelated issues. No one wanted to talk about the Court's performance on any plane higher than the immediate partisan box score. We pretend the Court is doing its job -- just like President Clinton, whose behavior, everyone agreed during the impeachment debate, had "disgraced his office" . . . but needn't prevent him from holding that office.

Can the Court really sustain this level of barely suppressed conflict, of endless shifting and maneuvering, of embarrassing contradictions? Maybe a future Court, bolstered with several Bush appointees, will do better. But the constituencies to which the Court now appeals will still have champions in the Senate, and a President Bush may wish to avoid bruising confirmation battles, as his father did. So a new Bush administration may appoint another Clarence Thomas -- or another David Souter. Meanwhile, the current justices have laid the groundwork for decrying different rulings in the future as nothing more than the political biases of a new majority. It may take a long time for the Court -- as well as the presidency -- to recover from the Clinton era.

Jeremy Rabkin teaches constitutional law at Cornell University.