The Supreme Court’s closely watched October 1999 term came to an end on June 28, and its themes finally became clear: inconsistency, incoherence, and arbitrariness. On that last day, the Court released important decisions on abortion, aid to religious schools, and homosexual rights, and refused to intervene in the Elian Gonzalez case. The Supreme Court’s decision in the Elian matter was at least understandable, because there was no legal issue in the case that really demanded the Court’s resolution. (The law was clear enough; it was the facts of the Elian mess that caused all the dispute.) But in all the other cases, I was hard-pressed to figure out what was going on.
For several years now, the most reliable guide to Supreme Court decisionmaking has been Sandra Day O’Connor’s position on an issue. She is indisputably the swing justice, and the best word that I can think of to characterize her jurisprudence is “capricious.” She was against allowing student-led prayers before Texas high-school football games, but she was in favor of supplying computers, purchased with federal funds, to private religious schools. She voted to reject a prohibition on partial-birth abortion, but indicated she would be willing to uphold such a law if it included an exception for cases in which the “health” of the mother called for the procedure. She joined in the Court’s decision that the First Amendment was not violated by banning anti-abortion speech within eight feet of women seeking to have an abortion, but she approved of the Court’s decision that the Boy Scouts had a First Amendment right to prohibit gay scouts and scoutmasters.
Over the years, I have tried to discern a firm basis for Justice O’Connor’s constitutional jurisprudence, but I have finally concluded that she still operates as if she were a state legislator. She decides what policy she favors, and then imposes it. The problem, of course, is that this is what legislators do; but judges are not supposed to be legislators.
Luckily, for those few of us who still believe in the rule of law—and the most simple definition of the rule of law is that “legislators legislate, and judges judge”—there are at least two, and perhaps as many as three or four current Supreme Court justices who share our faith. This term, Justices Scalia and Thomas pretty reliably refused to participate in the Court’s more egregious usurpations of the legislative role, as did Justice Rehnquist (although I think he was wrong to go along with the majority in the anti-abortion free speech case). And even Justice Kennedy, whose participation in the majority in the Texas school prayer decision cannot be excused, did the right thing in the religious-school funding case and seems to have reversed his position in the 1992 Planned Parenthood v. Casey decision by siding with the dissenters in the partial-birth abortion case.
That’s all to the good, but the emerging four-person conservative bloc cannot decide cases without Justice O’Connor, as Justices Stevens, Souter, Ginsburg, and Breyer have fairly consistently come down on the side of extending federal power and abortion rights, rigidly separating morality and religion from the public square, and, in general, carrying out the extraconstitutional, policymaking legacy of the Warren Court.
Many of those on the Court who seem not to care about their constitutional role were Republican appointees, but it is the Democrats who want to make the future of Supreme Court policymaking a campaign issue. Al Gore was quick to declare that the precarious nature of the five-to-four majority in the partial-birth abortion case was a potential threat to abortion rights, and he urged the undecided to vote for him so that he could appoint more pro-abortion justices. A few weeks earlier, Justice Scalia reportedly confessed plans to retire should Al Gore win, because the sensible Scalia has no desire to remain on a Court dominated by “living constitution” types. George Bush has recently stated that, while he has no “litmus tests” for Supreme Court appointments, he wants to appoint more justices like Scalia and Thomas. I’m voting for Bush, and hoping he does.
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