The Supremes’ Sophistry
News, July 14, 2003
2400 N St. N.W., Washington, DC 20037-1196
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
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
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
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
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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