Copyright (c) 2000 First Things 106 (October 2000).
At the end of this past term, the Supreme Court produced mixed results, but the results were mostly bad from a conservative point of view. And that is the way we must judge the Court these days, not in terms of constitutional reasoning, but in terms of ideology and politics, for that is all the liberal bloc has left us.
At least the Supreme Court this past term made one thing clear: constitutional law is useless to study and impossible to teach. Given its present performance, it ought also not be tolerated. It used to be that when a term of the Supreme Court came to an end, analysts gathered to pick over the bones of the decisions, looking for a shift in doctrine here, a hint of the future there. No longer. The near universal contempt for the Court’s work by professors and lay analysts alike is little short of stunning.
Professor Jeremy Rabkin’s article “A Supreme Mess at the Supreme Court” (Weekly Standard, July 17) is, if not entirely typical, close enough to the common reaction to be encouraging. The time for tut–tutting is past. Perhaps we are learning that what was within living memory an intellectual discipline is now politics, and a simplistic, highly partisan form of politics at that.
Though we speak of the left’s “long march” through the institutions of bourgeois democracy, we do not usually recall that one of the most important of those institutions captured by the left, not quite completely but very nearly so, is the Supreme Court. For the last half century the Court has been a revolutionary force in American culture and politics. In this it is abetted by some state courts applying state constitutions, which are unreviewable by federal courts. One has only to recall the Hawaiian and Vermont courts that found in their constitutions the right to same–sex marriage. But the federal courts, and particularly the Supreme Court, have taken the lead in remaking America.
To cite only a few instances, there have in other terms been decisions redefining the family, altering the composition of state and federal legislatures, striking down restrictions on contraception in the course of creating a right of privacy, protecting pornography, adopting rules rendering it virtually impossible to prosecute obscenity, refusing states the authority to support all–male military academies, creating special rights for homosexuals, limiting school disciplinary procedures, banishing religion from public life, protecting foul language in public as well as speech advocating violence and overthrow of the government, and, of course, inventing a right to abort.
The long march continued during the recent term of the Supreme Court. Missouri’s limit on statewide campaign contributions was upheld over First Amendment objections in order, among other things, to equalize political power (Nixon v. Shrink Missouri Government), while nude dancing, in this case prohibitable, was entitled to considerable protection as “expressive” behavior (Erie v. Pap’s P.M.). Yet the Court struck down student elections permitting speech that might be used for prayer prior to high school football games (Santa Fe School District v. Doe). At some point, parody is the only appropriate response. Theodore Olson, a leading Supreme Court critic, was prompted to suggest that the students should dance nude before the games since naked dancing is preferred to prayer as a form of expression.
Santa Fe School District showed two prominent aspects of the Court’s non–constitutional value system; though it invoked the Establishment Clause, the decision ran directly counter to that clause’s historical meaning and, for good measure, demonstrated deep suspicion of “majoritarian” decisions. Chief Justice William Rehnquist’s dissent justly observed that the majority opinion was “bristling with hostility” toward religion. The militant secularism, itself a religion established by the Court, was an instance of leveling since some students might be “offended” if prayer took place. That other students might be offended by government exclusion of prayer of any type counts for nothing in the Court’s jurisprudence.
At the same time, the Court held in Mitchell v. Helms that the Establishment Clause allowed government to donate materials and equipment to both secular and religious schools. Apparently, religion is toxic in public but allowable if practiced in a private enclave, where, like pornography, it is safely out of sight of those offended by the unseemly spectacle.
The decision that the Boy Scouts have a constitutional right called “expressive association” to bar an open homosexual from serving as an assistant scoutmaster (Boy Scouts of America v. Dale) surely was heavily influenced by fear of pederasty, not in Dale’s case but as inevitably flowing from a general rule applicable to all homosexuals. Today, of course, this is a fear that dare not speak its name. What is remarkable is that, even in this context, four Justices would have upheld a law that courted precisely that danger. In other contexts, and even in this one, with the departure of one member of the majority, homosexuality will become a favored category of persons. In part, it already has in the Court’s jurisprudence.
But it remained for the abortion issue to reveal the full extent of the cultural left’s determination to flatten the moral landscape. A Court majority overrode its own First Amendment doctrines to uphold a state ban on abortion protesters who seek to approach abortion clinics or women seeking abortions (Hill v. Colorado). But that decision paled into insignificance compared to the invalidation of a Nebraska statute prohibiting partial–birth abortions, a practice so close to infanticide as to be logically indistinguishable (Stenberg v. Carhart). The five–member majority thought the statute might “unduly burden” the general right to an abortion and was further defective because it included an exception only in cases where the mother’s life was threatened, not where her health might be adversely affected. Perhaps the former supposed defect could be remedied by a redrawn statute, but a general exception for health means that any abortionist’s finding of physical, mental, or emotional harm would make any statute limiting partial–birth killings unenforceable. Radical feminism and autonomy apparently conquer all other values, as they have in so many Court decisions.
The Court’s jurisprudence is so disconnected from the Constitution that it sometimes seems to defy explanation. Commentators have variously posited a liking of power for its own sake, or a distrust of the hoi polloi and representative democracy so deep that, as Professor Robert F. Nagel says, “The demands of ideology, jurisprudence, and even the Constitution begin to pale if you think your job is to protect civilization itself.” The remaining question is why a taste for power, distrust of the common man, and the defense of civilization always drive the Court in one direction. Why does the Court force into the Constitution notions of radical personal autonomy and egalitarian redistributions of power?
The fact is that one wing of the Court has aligned itself in the culture war with the intelligentsia against the rest of us. The reason so many Justices have over the past half century responded to the intellectual class is fairly well known, as is the reason for the orientation of that class on political and cultural matters. Another way of putting it is that, despite its death as an economic nostrum, the socialist impulse is the ruling passion of our age and is far broader than economics. It is possible to see the economic theory of socialism as one manifestation of a general preference for the universal over the particular, which, no doubt, is why it has been so frequently noted that socialists typically display a strong abstract sympathy for mankind and so little sympathy for individual people. Conservatism, by contrast, is more likely to respect the particularities of human circumstance and conduct.
One bloc on the Supreme Court is given to universal principles, or, to put the same point differently, a socialism of politics and culture, which necessarily implies redistribution of power in both areas. Hence, the preference for campaign finance limits despite the deleterious effect of such limits on the circulation of ideas and on First Amendment freedom of speech, and yet, simultaneously, a broadening of the meaning of speech to include “expressive” conduct, such as pornography and nude dancing. This flattens both political and moral hierarchies. Of course, not just any set of universal principles will do. The liberal bloc on the Court is almost fanatically secular, with a worldview that is antithetical to religion’s universals. This bloc silently rejects the irrefutable evidence of what the Establishment Clause was actually meant to prohibit and has rewritten the clause to sweep away almost all public manifestations of religion.
I doubt that all of the liberal bloc fully intend the cataclysmic revolutions they have put in train. They are not the fire–breathing zealots the evidence of their decisions might suggest. And yet, a solid bloc of them are revolutionaries—genteel and urbane, but revolutionaries nonetheless. Justice John Paul Stevens, for example, is in person a moderate and thoroughly likeable man. One can only conclude that he does not realize the full devastation and havoc the Court is wreaking in our common life. Nor do I imagine that those who join him in “bristling hostility” to religion think of themselves as secular zealots. The true explanation seems to be that they are so thoroughly dyed in intellectual–class attitudes, and so isolated from mainstream culture in their secluded working lives and social environments, that their results, and not merely in religion cases, seem to them entirely natural and commonsensical.
It is unlikely that the intellectual class will abandon its universalistic aspirations anytime soon. This means that Justices must be selected who are impervious to that class’s prejudices. Which in turn means that the direction of the Court will probably depend on the outcome of the presidential election in November. “Probably,” not “certainly,” only because of the vagaries of presidential choices. If Al Gore becomes President, we will certainly see nominees whose confirmation will put the Court on an extreme activist course for years to come and, if the past is any guide, the results will not be undone if and when more restrained Justices replace them. The “constitutional” right to an abortion will be entrenched and expanded. The prospect for banning even partial–birth abortions, or, more accurately, infanticides, will dwindle to zero. We may also expect a right to assisted suicide and same–sex marriage. The death penalty, despite being contemplated several times in the Constitution, may be abolished. Police will be further hampered in law enforcement efforts.
If George W. Bush wins, however, we cannot confidently expect appointees who are the opposite of Gore activists. A series of Republican appointments in the past has not materially altered the Court’s trajectory. We simply do not know how Bush would go about selecting his candidates and how much, if at all, he would consider the judicial philosophy of persons to be put on the high court.
What is at stake is legitimate government. Rule by judges beyond their jurisdiction is a usurpation of democratic prerogatives. We have, however, been living with serial usurpations for over half a century and no doubt most people have gotten used to it. That is why the Court succeeds in remaking the cultural and moral architecture of the United States. It is also why so few voters cast their ballots with the Supreme Court and constitutional governance in mind. Whatever respect we once had for the morality of process rather than the attractiveness of results has long since eroded. That is deeply unfortunate, not just because of the frustration of our common understandings of right and wrong, but because democracy depends on the rule of law, which, in turn, depends upon adherence to the morality of process.
Robert H. Bork is a Senior Fellow at the American Enterprise Institute and a professor at the Ave Maria School of Law. His books include The Tempting of America: The Political Seduction of the Law and Slouching Towards Gomorrah: Modern Liberalism and American Decline.