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
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

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.