Last edited: August 01, 2004

The Supremes’ Sophistry

U.S. News, July 14, 2003
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By John Leo

In its affirmative action and sodomy decisions, the Supreme Court defined itself, once again, as the instrument of America’s intellectual class. The Constitution and the 1964 Civil Rights Act say quite clearly that no one can be penalized or advantaged on the basis of race. Opinion polls say the same thing. For many years those polls, including separate surveys of minorities, have shown consistent and lopsided opposition to racial preferences. No matter. The elites want them, so the court stood up and delivered.

In striking down preferences in the University of Michigan’s undergraduate admission program (where the thumb on the scale was obvious) but upholding a very similar admission scheme at the university’s law school (where the skulduggery was slightly veiled), the court delivered a clear message: Keep finagling, but make sure to fudge things a bit.

Justice Sandra Day O’Connor’s majority decision in the law school case casually accepted the university’s self-serving reports on the benefits of preferences. But those reports were massively unconvincing. There is much evidence on the other side, in fact, that students pay a price in balkanization of the campus, separatism, stigma, and racial resentment. Again, no matter. No need for facts or evidence. The majority knew the result it wanted.

Consider the cynicism and de facto approval of dishonesty offered by Justice Ruth Bader Ginsburg. She said we might as well have open preferences, because even if they were banned, they would continue anyway through “winks, nods, and disguises.” In reply, Chief Justice William Rehnquist said Ginsburg thinks we should deal with university violations “not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities.” Fair comment. Changing the Constitution is exactly what the court did here.

Anything goes. The court’s decision in the Texas sodomy case was even more surprising, because the issue was a simple one and hardly required the justices to stray so far from the facts of the case. But stray they did, once again in the direction the elites wanted them to go.

In Lawrence v. Texas, the court simply could have struck down the state’s sodomy law on equal-protection grounds. A statute that criminalizes certain sexual acts when performed by homosexuals but allows the same acts by heterosexuals is simply indefensible. Jeffrey Rosen, legal affairs editor at the New Republic, says Lawrence was worse than Roe v. Wade, at least for those on both the left and the right who believe in judicial restraint. Rosen says the court “embraced and extended a sweeping and amorphous right to sexual liberty that is even harder to locate in the text or history of the Constitution than the right of reproductive autonomy that the court discovered in Roe.” (Translation: The court is making things up again. Someone please send them nine copies of the Constitution.)

In his opinion for the court, Justice Anthony Kennedy invoked the much-mocked, anything-goes “mystery passage” that he inserted into the 1992 Casey decision on abortion. “At the heart of liberty,” Kennedy wrote, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” If rigorously applied, this principle would justify suicide clinics, prostitution, bestiality, polygamy, and maybe interspecies marriage. The passage elevates individual desire over all known law on any issue any court might deem “central to personal dignity or autonomy.” It’s also a charter for resolving all issues of the culture war by removing them from normal democratic politics and handing victory to the liberationist side of the battle.

The court veered away from the perverse logic of the “mystery passage” in 1997 when it ruled unanimously that two state-legislated bans on assisted suicide did not violate the 14th Amendment. Chief Justice Rehnquist said the court wanted political debate to continue “as it should in a democratic society. Our elites do not trust majorities. They prefer to have issues settled in court, where they have great power. But in this case, the Supreme Court declined to short-circuit normal democratic politics.

But as in the last 10 minutes of a monster movie, the “mystery passage” makes yet another scary appearance here. In Lawrence, the “mystery” is invoked primarily to set the stage for the court’s approval of gay marriage and, perhaps, to undermine the military’s “don’t ask, don’t tell” policy. So much for normal politics continuing “as it should in a democratic society.”

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