Cover Story

Supreme arrogance

"Illogical," "indefensible," "quite simply absurd": Those were some of the words expressed inside the Supreme Court by some of its own members after a thin 5-4 majority voted to expand abortion rights to include virtual infanticide. But as the high court last week closed out a controversial 2000 term with its most closely watched decisions (Miranda rights, hate crimes, Boy Scouts, school choice), rain fell outside-as did the tears of those who lost

Issue: "Supreme arrogance," July 8, 2000

in Washington - Standing on a patch of wet grass directly across from the Supreme Court, Rep. Matt Salmon (R-Ariz.) seemed genuinely at a loss for words. So he turned to music. "We listen to a lot of country music in Arizona," he told the reporters surrounding him. "All I can think of today is a song called Holes in the Floor of Heaven." According to the song, he explained, when angels cry, their tears fall through the holes in the floor to reach the earth as rain. "I'm sure they're crying today," he added, looking to the gray sky to let the raindrops run down his face. There was weeping a lot closer than that, however. Just two hours earlier, the Supreme Court handed down its final decisions for the year. In one of the most closely watched cases of the term, the justices ruled 5-4 that Nebraska's ban on partial-birth abortion was unconstitutional. Pro-lifers were stunned. Many who gathered for a rally across from the court were tearful. Five judges had just proclaimed that the most brutal and inhumane of all forms of abortion is now a constitutional right. Years of painstaking work to change public opinion and draft state laws seemed to unravel with the stroke of a pen. The question of everyone's mind was, When will the killing stop? Thanks to the decision in Stenberg vs. Carhart, the answer is, Not soon enough. Some 30 states have laws limiting partial birth abortion; all those restrictions are now suspect, and lower courts are much less likely to uphold them against legal challenges. Pro-lifers of all political stripes lined up to blast the court for its most important abortion ruling in eight years. Rep. Chris Smith (R-N.J.) called the decision "exceedingly myopic and completely unjust." Rep. Ronnie Shows (D-Miss.) said the ruling "shakes the sacredness of life to its very foundation." And Ambassador Ray Flynn, the former Democratic mayor of Boston, called it "an affront to the conscience of this nation." Not all the criticism came from outside the court. Writing for the minority, Clarence Thomas called the majority's arguments "illogical" and "indefensible." He accused the majority of hypocrisy for trumpeting the earlier Casey decision (which permitted some limits on abortion) while simultaneously seeking to return the nation to an "abortion-on-demand era in which the mere invocation of 'abortion rights' trumps any contrary societal interest." In conclusion, he said, "the court's abortion jurisprudence is a particularly virulent strain of constitutional exegesis." In a separate dissenting opinion, Antonin Scalia was even more scathing. He blasted "the court's inclination to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue." He accused the majority (Justices Steven Breyer, Ruth Bader Ginsburg, Sandra Day O'Connor, David Souter, and John Paul Stevens) of practicing "policy-judgment-couched-as-law." Justice Scalia scoffed at the idea that "a 5-to-4 vote on a policy matter by unelected lawyers" should trump the will of 30 state legislatures. And then there was this: "The notion that the Constitution of the United States, designed, among other things, 'to establish Justice, insure domestic Tranquility, ... and secure the Blessings of Liberty to ourselves and our Posterity,' prohibits the states from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd." The drama of the Stenberg decision was merely the highlight of a momentous week at the court. Eager to mothball their black robes for the summer, the nine justices served up a smorgasbord of judicial opinions in some of the term's most controversial cases. There was something to satisfy almost everyone-and irritate everyone. Monday and Wednesday were the decision days last week. The most controversial decisions came down on Wednesday. Pro-lifers on that day were dealt a double blow when the court ruled that the right to a partial-birth abortion was inviolate (Stenberg vs. Carhart), while the right to free speech in protesting the procedure was not (Hill vs. Colorado). The case involved a Colorado law that created an 8-foot "bubble" around women entering or leaving abortion clinics. Protesters were not allowed to step inside that bubble to hand literature to the women or to otherwise try to persuade them not to have their children killed. A 6-3 majority on the court decided that such bubble zones did not violate the free speech rights of pro-lifers. "The protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it," wrote John Paul Stevens, for the majority. Anthony Kennedy, normally a moderate swing vote on social issues, would have none of it. "Today's decision is an unprecedented departure from this court's teachings respecting unpopular speech," he wrote. "The court's holding contradicts more than a half century of well-established First Amendment principles. For the first time, the court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk. If from this time forward the court repeats its grave errors of analysis, we shall have no longer the proud tradition of free and open discourse in a public forum." Although conservatives lost on the life-and-death issue of abortion, they could take some comfort in two other decisions handed down on Wednesday. In a case with major implications for the school-choice movement, the court ruled 6-3 that taxpayer money could be used to buy instructional materials for religious schools. Critics complained that a 1985 Louisiana law ordering public schools to share things like slide projectors and computers with local parochial schools violated the non-establishment clause of the First Amendment. A federal appeals court agreed, based on two Supreme Court rulings from the 1970s. But in a rare move, the Supreme Court of 2000 reversed itself. "We ... conclude that they are no longer good law," Justice Thomas wrote of the earlier decisions. He went on to say that hostility toward aiding religious schools "has a shameful pedigree that we do not hesitate to disavow ... Nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this court bar it. This doctrine, born of bigotry, should be buried now." Also buried on Wednesday were the hopes of a gay scoutmaster who wanted to redefine scouting's pledge to be "morally straight." James Dale of New Jersey sued the Boy Scouts of America when he was removed from a leadership position with his local troop after revealing his homosexuality. He charged discrimination based on sexual orientation, and the Supreme Court of New Jersey agreed, saying that his expulsion had been based on "little more than prejudice." The Boy Scouts, however, argued that as a private organization, its membership rules were protected by the constitutional right to free association. By a 5-4 majority, the Supreme Court agreed. "It appears that homosexuality has gained greater societal acceptance," wrote Chief Justice William Rehnquist on behalf of the court. "But this is scarcely an argument for denying First Amendment protection to those who refuse to accept those views," he continued. "The First Amendment protects expression, be it of the popular variety or not." Monday's decisions packed less emotional punch but still promised far-reaching consequences. Freedom of association, the constitutional principle that prevailed in the Boy Scouts case, also doomed California's "blanket" primary. In order to elect more moderate nominees, California gave primary voters a single ballot with the names of office-seekers from all political parties. Voters could then mix and match candidates according to their political tastes-a Democrat for governor, a Republican for Congress, and a Libertarian for state assembly, for instance. Supporters argued the blanket primary increased turnout and resulted in nominees less beholden to hard-core members of their respective parties. But four political parties-including the Democrats and Republicans-sued the state, saying freedom of association guaranteed party members the right to choose their own nominees. In a 7-2 decision, the Supreme Court agreed. Writing for the majority, Justice Scalia said California was "forcing political parties to associate with those who do not share their beliefs. And it has done this at the crucial juncture at which party members traditionally find their collective voice and select their spokesman." Among those filing friend-of-the-court briefs on behalf of the blanket primary was John McCain, whose presidential campaign depended heavily on bringing large numbers of non-Republican voters into Republican primaries across the country. In perhaps the most convoluted majority of the entire term, solidly conservative Justices Scalia and Thomas joined the liberal bloc of Stevens, Souter, and Ginsburg in a decision weakening state hate-crime laws across the country. The case involved a New Jersey man who received an enhanced sentence for firing shots into the home of a black family. A judge determined that the "preponderance of evidence" showed Charles Appendi Jr. was motivated by racial hatred, and he tacked two extra years onto the sentence. The court overturned that sentence, ruling that only juries could decide motivation-not judges acting on their own. The decision also said that "preponderance of evidence" was not a strict enough standard for invoking hate-crime penalties. Rather, said Justice Stevens, writing for the majority, lower courts must establish motivation "beyond a reasonable doubt"-a considerably higher legal hurdle. The decision could hamper the rush toward federal hate-crime legislation, since opponents can now argue more convincingly that the whole concept is riddled with legal and constitutional pitfalls. In another closely watched crime-and-punishment case, the court upheld the constitutional basis of the famous Miranda warning ("You have the right to remain silent ... "). A much more liberal court 34 years ago mandated that warning by a 5-4 vote. In a sign of just how entrenched bad rulings can become, Monday's decision upholding Miranda wasn't even close: Only Justices Scalia and Thomas opposed the requirement, which has helped untold numbers of criminals get off the hook. In his minority opinion, Mr. Scalia again blasted his colleagues, charging that the new ruling "converts Miranda from a milestone of overreaching" into one of "judicial arrogance." Despite the lopsided margin of the latest Miranda case, the court showed once again last week just how deeply divided it is. The biggest cases-from the Boy Scouts to partial-birth abortion-were decided by only a single vote. That all but guarantees that court appointments will be a political hot potato in this presidential election year. Few events motivate voters more than losing at the Supreme Court, especially by a single vote. And the abortion cases stung. But for all their seeming finality, Supreme Court decisions are not irreversible. Speaker after speaker outside the court on Wednesday reiterated the words of Justice Scalia in his Stenberg dissent: "I am optimistic enough to believe that, one day, Stenberg vs. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott," (two notoriously bad decisions that were later overturned). Rep. Bob Schaffer (R-Colo.) quoted Justice Scalia, then tried to put it all into perspective. "This court has rendered us a temporary hurdle which can be overcome," he insisted. "But God pity the children who will be lost in the meantime."

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