HUGS IN THE CASTRO DISTRICT, relief in Ann Arbor, panic in public libraries across the country: If it's the end of June, the Supreme Court must be turning laws-and lives-upside-down.
Wrapping up another difficult session, the nation's highest court last week dropped a series of legal bombshells, guaranteeing fallout that will last for decades. From gay rights to affirmative action to censorship, the nine justices issued perhaps their most controversial decision in a rare Thursday session-just before they high-tailed it out of town. In Lawrence vs. Texas, a majority of six justices took "the most radical outcome possible," according to Tom Jipping, a family activist and veteran court-watcher who was in the chamber when the decision was announced. "They basically declared there is a constitutional right to homosexual sex. Adding to the radical approach, they rejected the whole idea that legislatures can enforce community standards."
In an unusual move that indicates extreme displeasure, Justice Antonin Scalia read aloud his dissent from the bench. He ridiculed the 6-3 majority's logic, saying the ruling amounts to "an unheard-of form" of legal decision making "that will have far-reaching implications beyond this case." Justice Scalia-writing for Justice Clarence Thomas and Chief Justice William Rehnquist-predicted the ruling will mark the "end of all morals legislation" and will leave traditional marriage laws on "pretty shaky grounds."
At issue was a Texas law banning "deviate sexual intercourse with another individual of the same sex." Officials in Austin insisted the law simply reflected the community standards of their conservative, Southern state, but gay-rights groups argued the state could not criminalize actions by homosexual couples that were permitted for heterosexual couples.
While lawyers for John Geddes Lawrence and Tyron Garner, the homosexuals who challenged the law, high-fived in the court, pro-family groups openly considered the "far-reaching implications" of which Justice Scalia warned. But Glen Lavy of the Alliance Defense Fund took a broader-and more broadly alarming-view. "It's hypocritical if we focus only on homosexual behavior," he says. "Before God, all sex outside of marriage is a sin.... So while we're disappointed, this is no worse than having a state legislature say, 'We're no longer going to criminalize adultery or fornication.' It's just further evidence of the decay of the moral fabric of our country."
It's also further evidence of the decay of judicial restraint. "It's quintessential judge-made law," said Mr. Lavy. "The court substituted its view of morality for that of the state legislature. They created a right to any adult consensual sex without limitation, as far as I can see." He expects to see future legal challenges against laws banning prostitution and incest: "It's sex outside of marriage between consenting adults. I don't see how you can prosecute it, based on this decision."
Mr. Lavy takes at face value the majority opinion in Lawrence that the decision creates a no legal precedent that would presage a high-court reversal of state marriage laws. Justice Sandra Day O'Connor wrote that "other reasons exist to promote the institution of marriage," so marriage laws are safe for now.
Justice Scalia, however, said his colleague's assertion is valid "only if one entertains the belief that principle and logic have nothing to do with the decisions of this court. Many will hope that, as the court comfortingly assures us, this is so."
As the ramifications of the Lawrence ruling began to sink in, conservatives expressed almost as much surprise as outrage. Seventeen years ago, a more liberal court had ruled in Bowers vs. Hardwick that states could indeed regulate private sexual behavior. How could the Rehnquist court, with seven justices appointed by Republican presidents, overturn that decision?
Although the current court is often more restrained than it was under the previous two chief justices, that hasn't translated into any sort of consistent or predictable decision making, especially on the thorny social issues that consume so much of the justices' time. The same court that guaranteed student prayer groups the right to use public-school facilities then turned around and banned prayers at public-school football games. The same court that upheld multiple restrictions on abortion also upheld the legality of the most gruesome abortion procedure of all. And the same court that blocked two earlier attempts at cleaning up cyberspace voted just last Monday to allow Congress to require filtering software on computers at federally funded public libraries.
"There is no pattern of consistently coming down on the side of judicial restraint in these hot-button constitutional cases," says Mr. Jipping. "When you look at decisions like striking down the partial-birth-abortion ban or disallowing prayer before football games, you see a lot of activist decisions by this court. Even the Boy Scout case, which was very simple in point of law-should a private organization have the right to determine its message and membership-was split 5-4.... So I think it's difficult to come up with any single description for this group of justices."
Such inconsistencies and ambiguities were apparent again last week in two other landmark cases involving affirmative action at the University of Michigan. After years of gradually rolling back racial preferences, the court at last appeared ready to strike down affirmative action all together. Instead, Justice O'Connor and four of her colleagues decided that past discrimination justified favorable treatment of minorities in law school admissions, even if that resulted in discrimination against white or Asian students.
"This court has long recognized that 'education is the very foundation of good citizenship,'" Justice O'Connor wrote, quoting from Brown vs. Board of Education. "In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity."
Based on that principle, Justice O'Connor said, public law schools-and, by extension, all other schools, as well-can take race into account when determining whom to admit. At the same time, however, they cannot set rigid quotas or separate admissions tracks for minority students. Indeed, in a separate, 6-3 decision, the court struck down Michigan's undergraduate admissions procedure, which automatically awarded minorities 20 of the 150 points needed for admission. Under that system, merely being black would weigh more heavily than excellent writing skills or demonstrated leadership ability.
In both the law school and undergraduate cases, the principle of affirmative action was upheld by the courts, even if the practicalities were left murky. Lawyers for the two white students who sued the University of Michigan warned that colleges that continued to use race as a factor were merely setting themselves up for further lawsuits. And admissions officials, while publicly cheering the court's decision, were at the same time left to wonder if their procedures would pass muster under the relatively ambiguous ruling.
Conservative court watchers were predictably frustrated by the decisions. "As everybody knew, only one vote counted, and that was Justice O'Connor's," says Roger Pilon, vice president for legal affairs at the Cato Institute in Washington. "Once again, she gave us the kind of confused, middle-of-the-road opinion for which she is so notorious."
Even as legal analysts pore over last week's landmark cases, perhaps the biggest decision of all looms on the horizon. On a closely divided court, where majorities form and dissolve faster than a Hollywood marriage, a single retirement could make an enormous difference in how the Constitution is interpreted. This year, not just one but three justices are said to be eyeing their pensions, and their replacements could determine the direction of the court for a generation.
The most likely retirement would have the least impact in terms of the court's overall direction and philosophy. At age 78, Chief Justice Rehnquist is widely expected to end his 31-year tenure at the peak of judicial power. First appointed by Richard Nixon, he served 14 years as an associate justice before Ronald Reagan elevated him to the position of chief. In the early days, he was often the only conservative vote on key decisions. (In Roe vs. Wade he was one of just two justices who resisted the court's novel interpretation of a constitutional right to privacy.) Indeed, he wrote so many dissenting opinions that no one else would sign that the Lone Ranger doll in his office became his sort of unofficial mascot.
He had to wait a long time for his Tonto. Justice Scalia was appointed in 1986, and for the first time in 14 years the chief justice finally had a consistent ally on the bench. Five years later the addition of Clarence Thomas formed a solid bloc of three conservative votes. With the occasional, tepid support of Justices O'Connor and Anthony Kennedy, Rehnquist & Co. were able to rein in some of the judicial activism that had run amok since the 1960s.
Although pundits on the right sometimes quibble with his decisions or his judicial reasoning-he voted in 2000 to uphold the odious Miranda warning, for instance, because he said the law was already settled-there is little doubt that Chief Justice Rehnquist will leave the Supreme Court a much more conservative place than he found it back in 1972. Had he let his bad back lure him into retirement during the Clinton years, the leftward shift on the bench would have been cataclysmic. But even the most conservative nominee to replace the chief justice will have a hard time moving the court any further to the right: One conservative sitting in for another will simply maintain the status quo, rather than advance any sort of conservative agenda.
With no ideological shift at stake, Democrats in the Senate might be expected to let a Rehnquist retirement slip by without a fight. Fat chance. Instead, they're already sharpening their knives. Key liberals on the Judiciary Committee have warned President Bush not to settle on a nominee without first "consulting" them for some acceptable names. Mr. Bush, not surprisingly, rejected the idea out of hand. Presidential spokesman Ari Fleischer blasted Sen. Tom Daschle (D-S.D.) and other Democrats for "com[ing] up with a novel new approach of how the Constitution guides the appointment process."
Democrats have at least two good reasons to fight any conservative nominee. First, a Rehnquist retirement represents more of a danger for the GOP than an opportunity. Republican presidents have a spotty record, at best, in appointing justices who favor judicial restraint and strict construction of the Constitution. David Souter, for instance, is an outright liberal, while Justices O'Connor and Kennedy are centrist at best. Thus, if Democrats could force a more moderate heir to the conservative chief justice, they might actually succeed in shifting the court to the left.
Second, if Mr. Bush sticks by his principles and nominates a strict constructionist, Democrats have to worry about the precedent their votes might set. The battle over Justice Rehnquist's successor will only be a dress rehearsal, after all. Sandra Day O'Connor, the court's most unpredictable swing vote, is in poor health and said to be eyeing retirement. Then there's liberal John Paul Stevens, who, after 28 years on the high bench, is unlikely to last through a second Bush term.
Retirements by either Justices O'Connor or Stevens would touch off a battle for the soul of the Supreme Court. A reliably conservative replacement for either justice would mark a huge philosophical shift, making it immeasurably harder for liberals to legislate from the bench. The problem for Senate Democrats is that if they let a replacement for Chief Justice Rehnquist breeze by, it may be more difficult to oppose the next nominee, when the stakes are higher. If it's OK for a nominee to favor judicial restraint in 2003, why not the next nominee in 2004 or 2005? Republicans would be able to accuse the Democrats of flip-flopping in their standards and playing politics with the nomination process.
Thus, no matter who's the first to retire, the appointment battle is sure to turn ugly. "It will be worse than either the Bork or the Thomas hearings," predicted Mr. Jipping. "The left is good at conducting current confirmation fights to help in future confirmation fights. Their No. 1 rule is 'send a shot across the bow.' They will brand the nominee, no matter who it is, as a right-wing ideologue."
When it comes time to fight for or against a nominee, ideology will drive the debate on both sides of the aisle, simply because liberals and conservatives are diametrically opposed in their view of the proper role of the court. "Conservatives and libertarians see the court primarily as the nonpolitical branch of government," says Cato's Mr. Pilon. Rather than advancing a political cause, conservatives believe the Supreme Court exists solely to interpret the Constitution as the founders intended.
To liberals, on the other hand, "The Constitution is largely an empty vessel to be filled by transient majorities in the legislature or by socially enlightened justices on the Supreme Court," Mr. Pilon says. "Liberals see the court in large measure as one more political body [and] they judge the court according to whether it's carrying out their political agenda." With a strong Republican president and GOP majorities in both houses of Congress, the Supreme Court is looking more and more like the last hope for that agenda. As such, it's surely worth a little bloodletting on the Senate floor.
In Mr. Bush's favor are the sheer number of expected retirements. If he serves two terms, he will likely replace a minimum of three justices. Three brutal, back-to-back confirmation fights like the liberals waged against Robert Bork or Clarence Thomas would leave the Democrats looking petty and obstructionist and risk a backlash by voters concerned about Washington "gridlock."
Still, Democrats have often proven more consistent than Republicans in sticking to their guns over judicial appointments. And, as proved by last week's decisions, there's no issue in Washington that carries higher stakes.