Michael M. Uhlmann is visiting professor of government at Claremont Graduate University.
Not so very long ago, defenders of judicial activism felt it necessary to justify how an unelected body of lifetime appointees could become the definitive voice of constitutional authority in a democratic society. One thinks, for example, of Professor Alexander Bickel of Yale Law School, who understood that judicial review as practiced by the Warren Court differed not only in degree, but in kind, from prior custom. That the modern Court wandered far and wide across the political landscape was, in Bickel’s view, not only unprecedented but deeply troubling. The Court, he feared, had grown increasingly cavalier about the principles of representative government; it had begun to sever itself from the ground of its own authority.
Bickel, a liberal by political conviction but a Burkean by temperament, sought to provide a qualified justification for modern judicial review, one that limited judicial power no less than overweening legislative majorities. He affirmed many of the judiciary’s new ventures, especially in race relations, but thought the Supreme Court prided itself far too much in being the premier engine of social progress. Bickel was far wiser than most of his colleagues in recognizing the practical limits and political dangers (both to the country and the Court) of trying to effect radical social change by judicial decree. His cautionary reflections, set forth in such works as The Least Dangerous Branch and The Morality of Consent, are not much honored these days. Contemporary academic commentators seem to have forgotten (if they ever had much sympathy for) Bickel’s prudential case for judicial restraint. If anything, they celebrate free-wheeling judicial interpretation for precisely the reason that Thomas Babbington Macaulay once faulted the Constitution itself: it was, he said, all sail and no anchor.
Modern judicial review began, inauspiciously enough, with a footnote. It appeared in U.S. v. Carolene Products, a case otherwise unremarkable save for footnote 4, which presaged a change in judicial policy that in the fullness of time would profoundly alter the
Supreme Court as well as the common understanding of the Constitution itself. The year was 1938, which marked the end of the war between Franklin Roosevelt and the High Court, a struggle that featured among other things the President’s proposal to stack the Court with jurists congenial to the constitutional assertions of the New Deal.
The court-packing scheme ran into a political firestorm and failed to pass, but the Court was nevertheless chastened. Retirements, deaths, judicial recantations, and new appointments eventually gave Roosevelt what he wanted. Henceforth, the Court would yield to Congress and the Executive almost unfettered authority to enact economic and social welfare legislation. Carolene Products, which upheld federal regulation of milk prices, was in this larger context but a routine certification of the Court’s political submission. But now that the Justices had removed themselves from the debate about the constitutional propriety of the New Deal revolution, what important work was left for them to do?
The question sounds naive today, but was hardly so in 1938, when the idea of limited government still had purchase and that of judicial supremacy had yet to be born. The answer, it turned out, was plenty, and footnote 4 provided a road map for the work that lay ahead. While the Court would normally presume the constitutionality of laws governing economic activity, the footnote said, “a more searching judicial inquiry” would occur when it confronted laws or policies impinging upon civil and political rights. Most important among these were guarantees specified in the Bill of Rights (which the Court had already begun to apply against the states via the Fourteenth Amendment); rights integral to the political process, such as voting and political activity generally; and rights associated with what the Court called “discrete and insular minorities.” (Although the Court had racial and religious minorities chiefly in mind, this last category proved to be highly elastic.)
When read without reference to the six decades of aggressive judicial activism that followed, footnote 4 has a surface plausibility that portends no apparent radical turn. If anything, it approaches its subject in a roundabout, almost tentative manner, as if the Justices themselves were unsure of where it might lead. When read in light of subsequent history, however, it proved to be the harbinger of revolutionary implications that not even the most liberal members of the 1938 Court would have dared imagine. In hindsight, footnote 4 accomplished two things at once: it established a framework for a massive expansion of Court business and, in skeletal form at least, the philosophical justification for that expansion. On its unpretentious foundation the Court erected the machinery that would over the decades to come convert traditional judicial review into judicial supremacy.
The operative formula was disarmingly simple: the intensity of judicial scrutiny would vary with the class of rights at issue. When a right was deemed to be “fundamental,” “strict scrutiny” would apply, meaning the government would have to show a “compelling interest” to justify the law or policy in question — an almost impossible burden. “Ordinary scrutiny” would apply to most other rights, in which case the government would need to show merely a “rational basis” for its action. (In later years, the Court carved out yet another tier, called “intermediate scrutiny,” and began to apply it to gender classifications.)
The Scrutiny Game—and it is not too much to call it that—has over time acquired all the attributes of scholastic formalism, replete with multi-part threshold inquiries, triggering mechanisms, and balancing tests, along with other heavily footnoted refinements of a sort much beloved by law professors. Technical academic commentary, however, often obscures the crucial point, which is not what a given level of scrutiny may or may not entail, but how a label gets attached to a right in the first place. That determination, to borrow from Justice Robert Jackson in another context, “must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”
Yet from it almost everything else of importance follows. The Justices may declare, as they have on many occasions, that rights are “fundamental” if contained in the Bill of Rights or otherwise included within the due process and equal protection clauses of the Fourteenth Amendment. Those are, however, anything but hermetically sealed categories; indeed, the Justices themselves determine their content and meaning. (When William O. Douglas discovered in Griswold v. Connecticut a right to privacy in “emanations, formed from penumbras” of various Amendments, was he talking about something in the Bill of Rights? How would one know? How would one object?)
Parse the scrutiny rules as one will, at the end of the day the Justices control both ends of the balance: they define the nature and importance of the right at issue, they define the countervailing governmental burden, and they can tweak the balance on either side of the scale more or less at will. Altogether, the formula establishes a foolproof method for securing judicial hegemony over both legislative policy and the definition of rights; whatever the public policy result, the Court determines its outcome.
Had the Justices been otherwise disposed to restrain themselves, the self-empowering tautology of the scrutiny formula need not have led inexorably to judicial supremacy. It was, after all, merely an instrument for the expansion of judicial authority that said nothing about how it would be deployed. The decisive change came when the long march from Carolene Products passed through Brown v. Board of Education, the Ur-decision of judicial supremacy, which seems to have endowed the Justices with a sense of missionary zeal. Though properly hailed as the clarion call that helped to free American blacks from legal and political bondage, Brown’s greater significance lay in what it did to the Court itself. Confronted by the injustice of Jim Crow on the one hand, and on the other by long-standing constitutional interpretations limiting the scope of available judicial relief, the Justices at first felt boxed in by their own precedents. But if the Court’s prior rulings had indeed painted it into a corner, it ultimately resolved the dilemma by painting a door on the wall and stepping through: in so many words the Court said that if the Constitution as it stood was unable to provide the necessary relief, the Constitution would have to yield. And yield it did, to all sorts of extra-constitutional sources of authority, especially sociological and psychological arguments that were selectively deployed to advance the Justices’ new-found desire for social reform.
The rest, as they say, is history. Like the man who, armed only with a hammer, begins to see everything as a nail, the Court found new targets of opportunity, which, precisely because the Justices had freed themselves from the burdens of constitutional text and tradition, must have seemed all the more inviting. If achieving racial justice justified departure from the Constitution, why not other urgent social causes as well? The reformist agenda soon became a long list. The Court completed the work, begun three decades earlier, of nationalizing first the speech and then the religion clauses of the First Amendment, providing both with a thoroughly modern spin. Then, by gradual degrees, it nationalized everything else in the Bill of Rights. The due process and equal protection clauses of the Fourteenth Amendment were endowed with new substantive content and aggressively deployed to impose new federal standards upon the states across a wide range of public policy. Among other things, the Court wrote what amounted to a new, national code of criminal procedure, almost abolishing capital punishment along the way. It revolutionized the law dealing with legislative apportionment and districting and, in doing so, contrived a novel theory of political representation that, if taken seriously, casts doubt on the constitutional legitimacy of the Electoral College and the United States Senate.
This work required the creation of a dizzying array of new constitutional rights whose existence had previously been undetected, and whose meaning was controlled by the Court itself. The high (or low, if you prefer) point was reached in Griswold, Roe v. Wade, and their progeny, which read into the Constitution a highly questionable theory of individual autonomy wholly at odds with its original principles. All this, and more, was done in the name of advancing social justice; and it was done, for the most part, with only a tenuous connection to constitutional text and tradition, or to judicial precedent. The rise of modern judicial review, to be sure, is a complicated tale, marked by occasional detours and tactical retreats, but its main lines are now clear. Although the Court entertains few constitutional objections to government regulation of the economy, on almost every other subject it not only entertains but frequently invents them. Today, we have judicial deference on most matters affecting the administrative state, and judicial supremacy on essentially everything else, including religion, morals, social life, and culture.
Judicial supremacy means that on essentially all matters that determine who and what we are as a political society, the Supreme Court both makes the rules and, through its opinions, sets the parameters for public debate. Whatever one may think about particular rulings as a matter of policy, a striking feature of modern constitutionalism is how little elected officials have to do with its formulation. More telling yet is the extraordinary deference accorded by those same officials, not just to the Court’s particular judgments but also to the often radical constitutional theories that justify them. Indeed, for every Member of Congress who rails against judicial excess, there must be two who cannot scurry fast enough to introduce legislation to comport with the latest ruling from the High Court. The Congress of the United States is the last place these days where one would expect to hear a serious extended debate about constitutional principles. Even popular Presidents—save when their own powers are at issue—tend to defer to the Court’s reasoning on matters of national importance.
The modern Court, in a word, dominates constitutional law in a manner that has no precedent in American history. We have had powerful Courts before, but none so presumptuous about its own authority or about its exclusive claim to divine constitutional meaning. Not only does the modern Court make the rules, it feels increasingly free to alter them as it goes along. Change seems to have become the ultimate constitutional desideratum. Thanks chiefly to the Supreme Court, the Constitution is now widely understood to derive its legitimacy not from the permanent truths on which its provisions rest, but from their more or less endless capacity (as divined by the Justices) to adapt. The Court has given us a “living Constitution,” by which the Court simultaneously justifies its interpretive plasticity and leaves its critics in the unenviable position of having to defend a “dead” Constitution.
The living Constitution did not spring full blown from the brow of Justice William Brennan, the most effective and articulate exponent of the idea for more than twenty years. The ground for its reception had been decisively prepared for many decades by the Progressives’ critique of the founding, which reduced the original Constitution to an outmoded, rigid eighteenth-century contrivance. As Woodrow Wilson famously argued, whereas the original Constitution took its cues from Newtonian mechanics, a modern Constitution should be guided by Darwinian principles, which is to say the inevitability of permanent change. The Progressive indictment, in turn, paved the way for the reception of various species of legal realism, sociological jurisprudence, and moral relativism that came to dominate the legal academy.
The academics’ Constitution, which has willy-nilly become the Court’s, is commonly described as a framework for democratic aspiration, by which is meant a Constitution that is in a constant state of becoming. Toward what end the proponents do not precisely say, at least for public consumption, but they remain confident that the Supreme Court should be the preferred instrument through which the details are implemented in beneficent fashion. The living Constitution should be a protean artifact, changing shape in response to the impressions made upon it by what Justice Oliver Wendell Holmes called “the felt necessities of the times.” For reasons that have yet to be adequately explained, the Supreme Court has been vested with the authority to determine just what those necessities might be.
Under this new dispensation the Court is increasingly seen as a political institution, different in form and customs from the political branches but not essentially different in kind. And why should it not be so understood? One can scarcely name an issue of political or moral significance on which the Court has not opined or suggested how we ought to think. That is why judicial nominations are now routinely freighted with hot political debate; and that is why the full glare of media attention now focuses on the Court whenever a major decision is pending.
The Court has acquired substantial power over our political culture. The public, which knows little about the technical details or philosophical implications of constitutional doctrine, knows that much. And so do the Justices. The remarkable thing about Roe v. Wade is not only the substance of the rule it announced, but the fact that the Court felt so little compunction about imposing a new and radical rule upon the entire nation. But for all the controversy generated by the abortion decisions, the public is generally not disposed to chasten the Court for its excesses on that or any other subject. The modern Court has tutored the public well on how it ought to think about judicial power and the Constitution. And its central teaching, as I say, is not about the permanent principles that justify representative government but about the inevitability of, indeed the duty to, change.
The public is by now so well inured to judicial supremacy and the concept of a living Constitution that it has lost the capacity to be shocked by the Court’s opinions. Every term seems to bring some hitherto unobserved layer of constitutional meaning, or a gloss reversing or substantially qualifying an old understanding. Just when one thinks the Justices might zig, they zag, but whichever way they turn, their reasoning seems increasingly arbitrary and contrived. This is certainly true of the most noteworthy cases of the recently completed term, the affirmative action cases (Gratz v. Bollinger and Grutter v. Bollinger) and the sodomy law litigation (Lawrence v. Texas). Many of the other cases, though of immediate interest mainly to technical experts, show how deeply invested the Court has become in the details of legislative policy.
Of more general interest, the Court sustained California’s “three-strikes” law, though we have no reason to think that this will be the last time that issue gets visited. It also upheld the Children’s Internet Protection Act against a First Amendment challenge. As with most congressional efforts to stem the tide of pornography, the practical effect of the legislation is likely to be quite modest. Despite occasional caviling, Congress long ago acceded authority on the subject to the Court. The Court also dealt last term with anti-abortion demonstrators, whose First Amendment rights had been substantially curtailed by the Justices in recent years, and finally did the right thing: it held that these protestors could not be tried for extortion under the Racketeer Influenced and Corrupt Practices Act (aka, RICO). And in a legislative redistricting case (Georgia v. Ashcroft), the Court upheld a state Senate plan that reduced minority population in a number of districts (called “retrogression”). Though the details of voting rights law can glaze the eyes of even experienced and hardened practitioners, the interesting feature of this litigation is that the Court once again changed the rules of the game just when everyone thought they finally knew what the old rules were. The Court’s endless tours of redistricting’s political thicket have not been its finest hour. Courtesy of the Court’s instruction, retrogression was until now an almost absolute no-no. The latest Georgia case appears to void that rule—or so we think — by opening the door to a multifaceted “all relevant factors” test. Stand by for more litigation, lots of it, and welcome once again to the world of living constitutionalism.
The Court’s two ventures into the affirmative action thicket fared no better. It began its journey twenty-five years ago in the Bakke case when it ruled that a white medical school applicant had been victimized by a minority admissions quota. Although Alan Bakke won his case, no opinion could command five votes, which is in itself an interesting comment on contemporary judicial rule-making. One would think that on so sensitive a matter as the use of racial criteria the Court would take special care to devise a relatively bright-line rule. But one would be wrong. In the event, the decisive fifth vote on the judgment was provided by Justice Lewis Powell, who issued an opinion that no other Justice joined.
Until this year, the Court had in the ensuing quarter century studiously avoided the use of affirmative action in educational settings. During the just-completed term, however, it took two bites at the apple. The resulting opinions, however, are no more digestible than what the Court served up in 1978. The undergraduate case (Gratz) entailed a palpable quota that no amount of parsing could disguise. (“Underrepresented minorities” automatically received a sizeable admissions bonus solely because of race.) The Court correctly found an equal-protection violation, although three Justices, against all evidence, would nevertheless have sustained the admissions program.
Justice Ruth Bader Ginsburg’s dissent in Gratz offers an interesting insight into the inclination of certain Justices to bend constitutional rules in the interest of achieving “higher” social goals. She argued, among other things, that sustaining the admissions program would be “preferable to achieving similar numbers through winks, nods, and disguises.” This prompted a pointed reply from Chief Justice William Rehnquist in his opinion for the Court: surely Justice Ginsburg was not suggesting that universities would pursue affirmative action programs after they were found to violate the Constitution? Her recommendation, he added, reduced itself to the proposition that constitutional violations should be dealt with “not by requiring the universities to obey the Constitution, but by changing the Constitution so that it conforms to the conduct of the universities.” Game, set, and match to the Chief, but his debater’s-point response is unlikely to affect the course of Justice Ginsburg’s jurisprudence, or that of her fellow dissenters.
Rehnquist’s opinion in the undergraduate case attempts to extract a much-needed bright-line rule that the Court’s prior rulings have so assiduously avoided. Justice Sandra Day O’Connor’s opinion in the law school case (Grutter), by contrast, muddies the waters once again and, by so doing, will undermine the clarifying thrust of the undergraduate case. Stripped to its essentials, her endeavor bestows a constitutional benediction upon the intellectual legerdemain that enables universities to practice racial discrimination. What Justice Ginsburg failed to accomplish by being too candid about “winks, nods, and disguises,” Justice O’Connor has accomplished by banishing candor altogether. Her opinion not only runs head-on against Rehnquist’s, it runs against arguments she herself has embraced in any number of cases, especially those dealing with racial set-asides in government contract programs.
The mischievous core of her opinion lies in the proposition that “diversity” is a compelling government interest. As employed by universities, however, diversity is but an ideologically rigged neologism for racial discrimination by any other name. Once detached from that purpose, it is an utterly vacuous term that cannot provide any sort of coherent rationale for state action. Significantly, O’Connor never discusses diversity as such, and for good reason. It is a concept that disintegrates upon close examination, as recent studies by Peter Wood and Peter Schuck demonstrate to a fare-thee-well.
Its legal locus classicus occurred in Justice Powell’s Bakke opinion, where he wrote that the achievement of “educational diversity” (emphasis added) constituted a compelling interest that, in turn, could justify the use of race as one “plus factor” in university admissions.
But until Powell bestowed constitutional dignity upon the concept and thereby transformed it into a legal term of art, diversity was little more than an armchair colloquialism whose meaning was infinitely variable. Once he did so, however, the term acquired a life of its own, spawning a cottage industry of books and articles that sought to make racial quotas intellectually and constitutionally respectable. Although Powell spoke for no one but himself in Bakke, universities and their lawyers treated his rationale as if it were the law of the case. Alan Bakke won his case, but universities continued to do to others what his medical school had done to him, being careful, however, to dissemble their actions behind the screen of diversity rhetoric.
Some schools were more sophisticated than others in this endeavor. Indeed, the University of Michigan admissions programs at issue in Gratz and Grutter demonstrate the range of difference. The law school cloaked its discriminatory designs. The undergraduate college, no doubt because it had to deal with a much larger pool of applicants, resorted to a crude quantitative formula that not only looked like, but was in fact, a racial quota system. The law school scheme, by nominally eschewing the hard minority bonus formula employed by the undergraduate college, made it appear that its admissions program was “individually tailored”—that is, not controlled by racial criteria. Five Justices bought into the ruse, even though its operative effect was indistinguishable from the racial mischief ostensibly condemned in the undergraduate program. As the Chief Justice demonstrated in his dissent, although the law school claimed that each applicant was considered on his or her individual merits, the percentage of minority candidates admitted precisely tracked with the percentage who applied.
Justice O’Connor gets around this fatal defect—fatal, that is, if you take the undergraduate case seriously—by averting her gaze; what she declines to see, she doesn’t have to deal with. To be more precise, she insulates the law school’s racial balancing program against close inquiry by wrapping it in the raiment of the First Amendment. It would be not only unseemly but legally improper for the Court to inquire into an academic institution’s self-defined educational mission. So much for strict scrutiny. In similar fashion, she bows without inquiry to the law school’s claim that a major purpose of its admissions program was to obtain a “critical mass” of minority students. Apart from the fact, pointed out by the dissents, that the program in fact yielded nothing like a critical mass, the very concept of critical mass turns to dust as soon as it is touched. But once again, O’Connor averts her gaze by deferring to the school’s right to define its own educational policy.
Feeling the weight, no doubt, of the Court’s prior precedents (not to mention some of her own opinions), Justice O’Connor makes a rhetorical bow by noting that a program designed to achieve racial balance would of course violate the equal protection clause. But her gesture is only rhetorical. By deferring to the school’s right to define its educational mission, she estops the Court from even looking at, much less examining, evidence revealing the law school program to be, in both purpose and effect, a racial balancing scheme.
To analyze her opinion in this way, however, is to confer upon the Scrutiny Game an intellectual dignity it does not truly deserve. The Court long ago made clear that government policies dealing with race would be subjected to the strictest scrutiny. But as the university admissions cases demonstrate, one man’s strict scrutiny can be another woman’s once-over-lightly. Justice O’Connor’s opinion, in the end, is a palpably result-oriented exercise, driven ultimately by a kind of racial noblesse oblige, that sheds more light on the Court’s arbitrariness than it does on the substantive legal questions at issue. Although the cases were handed down on the same day, Gratz points in one direction, Grutter in another. On the important question of whether and to what extent government may take race into account in distributing benefits and burdens, we know little more than we did before, except that the achievement of “diversity” (undefined) may sometimes (precisely how or when is hard to say) be considered a compelling state interest sufficient to justify benign (for some groups but not others) racial discrimination. What we do know, very clearly, is that the Court, and the Court alone, is in charge. The living Constitution may give, and it may take away, but only the high priests are empowered to divine the meaning and application of its protean provisions.
Justice O’Connor’s constitutional divinations in Grutter further muddled an already badly confused body of law on an important subject. Its likely result, as Justice Clarence Thomas remarked in his eloquent and passionate dissent, will be to perpetuate the very racial stereotypes the liberal majority believes it is helping to eliminate. Universities have been skilled practitioners of racial discrimination under the guise of diversity for a long time, and Grutter will therefore effect no radical change in policy. The same cannot be said of Justice Anthony Kennedy’s opinion for the Court in the homosexual sodomy case (Lawrence v. Texas), the implications of which are indeed radical and likely to be with us for a long time to come. If Grutter is a more or less routine example of how the Court alters its standards of review to effect a particular policy result, Lawrence reveals the extent to which living constitutionalism is imbued by a profoundly postmodernist agenda.
The energizing principle of juridical postmodernism may be found in the Court’s invention of a right of privacy, which entered constitutional law formally with the Griswold case in 1965. Privacy is a multilayered concept whose meaning escapes the bounds of mere dictionary definition. At what might be called a commonsense level, everyone is for it, which is why Griswold’s narrow holding (that married people ought to be able to obtain contraceptives) was generally accepted. Though it piggy-backs on commonsense understanding, the Court’s embrace of privacy is something else altogether. As a juridical concept, privacy is heavily freighted with a larger ideological agenda, one that goes far beyond even sexual matters; it has become a vehicle for the idea of autonomous individualism generally.
The Griswold Court was cautious in announcing the privacy concept, partly because its constitutional provenance was so weak, and partly because the Court realized, as the public did not, the far-reaching implications of its decision. Although the rationale of the case implied a generic right of sexual privacy, the Court was careful not to draw attention to that fact. It spoke instead of the importance of marriage to society and of the importance, therefore, of the right of married people to decide whether and when to have children. But Griswold’s principle could not be so easily cabined, as the Court demonstrated seven years later in Eisenstadt v. Baird, which prohibited the government from proscribing the sale of contraceptives to single people. Of a sudden, the right of sexual privacy was no longer tethered to marital intimacy or the protection of marriage as an institution. It now appeared that the Constitution protected consensual sexual activity in general (at least for heterosexuals), a point underscored a few years later when the Court approved the sale and distribution of contraceptives to minors. The concept of sexual privacy, in short, had acquired wings, and it was only a matter of time before homosexuals would lay claim to the argument.
The next step came with the abortion cases, which for liberals stand for far more than a woman’s right to control her own body. By the time we get to the Casey decision in 1992, Justice Kennedy is no longer content to defend abortion as a private choice whether or not to procreate. The right to abortion must be defended because it is an expression, but only one expression, of a generic right of personal autonomy: “At the heart of liberty is the right to define one’s own concept of existence, of the meaning of the universe, and of the mystery of human life.” To those who have criticized this breathtaking leap into postmodernist metaphysics as a radical departure from constitutional norms, Justice Kennedy offers an even more breathtaking answer, which he sets forth in the concluding paragraph of his Lawrence opinion. If those who drafted and ratified the original Constitution and the Fourteenth Amendment had only known what he knows about “the components of liberty in its manifold possibilities, they might have been more specific.” They, too, it appears, would have been exponents of living constitutionalism and defenders of modern theories of moral autonomy. If only James Madison had studied with Ronald Dworkin rather than John Witherspoon, he would have seen the light.
This remarkable concluding paragraph is highly revealing and, in a sense, tells you everything you need to know about what precedes it. The Court ruled in Lawrence that the government may not outlaw homosexual sodomy based on moral and religious opinion, or even a desire to protect the traditional family. Justice Kennedy’s rationale for this conclusion prompts a number of thoughts, none of them kind. It demonstrates within a relatively small compass the essential thrust of living constitutionalism—its presumption of judicial supremacy, its deconstruction of legal history, its contempt for traditional moral sensibilities, and its reliance on modern Supreme Court cases, rather than constitutional text and tradition, as the more or less exclusive source of constitutional authority.
It also demonstrates that the majority is thoroughly invested in postmodernist conceptions of morality and the human person: the Constitution is protean because human beings are protean creatures, making up their morality as they go. What was held to be true in the eighteenth or nineteenth centuries, or even in the twentieth century, cannot bind us today.
Not even what the Court itself said seventeen years ago about homosexuality can any longer bind us. Lawrence purports to overrule Bowers v. Hardwick, which sustained Georgia’s homosexual sodomy statute in 1986. One must say “purports” because the Bowers Court emphatically refused to designate homosexuality as a “fundamental” right and, by doing so, upheld the Georgia law in accordance with the “rational basis” test. Justice Kennedy also declines to label homosexuality as a fundamental right. He nevertheless subjects the Texas statute to what can only be called “strict scrutiny,” although he refuses to acknowledge that that is what he is doing. His approach is the obverse of what Justice O’Connor did in Grutter. There, where race was at issue she of course purported to apply strict scrutiny but in fact did nothing of the kind. Here, Kennedy purports to apply “ordinary” scrutiny while in fact imposing much stricter standards. The Scrutiny Game continues, making a mockery of the Court’s principal reviewing technique, and revealing just how manipulative the Justices can be when they want to reach a particular result.
It will be said, of course, that the Court sometimes makes mistakes and that there is nothing inherently wrong with overruling wrongly decided precedent. That is true enough, but it is an odd argument to use in defense of the Kennedy wing of the Court. It was only a few years ago, after all, that the Court’s liberals took particular umbrage at the suggestion that Roe v. Wade had been wrongly decided. The rule announced in Roe was not only the leading example of gross judicial overreaching; it was clearly unworkable, as even many liberal supporters of the Court pointed out.
When the question of Roe’s continuing viability could no longer be avoided, however, the Court’s majority delivered a long lecture in Casey on why it had a duty to sustain Roe despite its palpable flaws. The public had a right to expect that on important issues the Court’s opinions would have permanence. The Constitution must not only be, but must be seen as, the repository of enduring principles. As for widespread sentiment opposing the decision, the Court had a duty to rise above raging currents of public opinion. Most important of all, the reputation of the Court as the expositor par excellence of constitutional meaning was at stake. What would happen to respect for the rule of law if the Court was seen to lean now this way and now that?
For reasons only the Lawrence majority can explain, none of these reservations had purchase on the decision to overrule Bowers. The case had simply been wrongly decided, and that was that. Casey’s “duty” not to overrule Roe becomes in Lawrence a duty to set Bowers aside. The principal flaw in Bowers, Kennedy argues, was that the 1986 Court failed “to appreciate the extent of the liberty at stake.” Specifically, the Court got the question wrong. It was not, as Justice Byron White had said, the right of homosexuals to engage in sodomy as such, but the generic right of sexual privacy of which homosexual intimacies were merely a part. And sexual privacy was but a subset of a broader right of personal autonomy. The 1986 majority, in short, had failed to appreciate the higher learning about personal autonomy set forth in such cases as Griswold, Eisenstadt, and Roe, and as comprehensively articulated by Kennedy himself in Casey. In addition, the Bowers Court did not have the benefit of Kennedy’s opinion for the Court in Romer v. Evans (1996), striking down on equal protection grounds a Colorado plebiscite that sought to curb “special” rights for homosexuals. Opposition to homosexuality, Kennedy there suggested, betrayed a mean-spirited “animus” against a class of citizens that could not be justified by any legitimate public purpose.
Bowers was also flawed, Kennedy argued, because it mistakenly thought that opposition to homosexual sodomy had “ancient roots.” In a discussion eerily reminiscent of Justice Harry Blackmun’s deconstruction of long-standing legal strictures against abortion, Kennedy noted that scholarly opinion, although mixed, suggests that opposition to homosexual sodomy is neither particularly ancient nor particularly well-rooted. But, Kennedy adds, even if such opposition were as widespread as Bowers suggested, it would still not avail. Whatever moral opinion may have held in the past, it need not overly concern our more enlightened era.
To demonstrate modern enlightenment, Kennedy cites recent changes in state laws showing greater tolerance for homosexuality. But taking note of what state legislatures do or don’t do is a game that can be played any number of ways. Why are states that have repealed sodomy laws relevant, but not others? Why, as Justice Antonin Scalia points out in his dissent, did the Court not note the numerous lower-court judicial decisions that have relied on Bowers? Clearly, the majority did not mean that the Court should take its constitutional cues from what state legislatures and courts do or fail to do. What it did mean is that the Court will take judicial notice of legislative and judicial action when it moves in one direction only. The Court thought nothing of overruling the abortion laws of all fifty states in 1973, and had subsequently shown equal contempt for the thirty-odd state legislatures that have attempted to restrict partial-birth abortion. On the particular subject of homosexuality, the Court might also have noted the enactment of a federal Defense of Marriage Act as well as analogous statutes enacted by thirty-seven states. But Kennedy cites none of the abundant evidence suggesting that tolerance of the homosexual lifestyle may not be as strong as he thinks it is. Finally, whichever way the evidence points, why should the citizens of Texas be bound by what the citizens of New York or California or any other state decide to do? Kennedy never addresses that point. He simply assumes that history is moving in a certain direction and that Texas needs to get on board. Its failure to do so, he in effect argues, can only be explained in terms of its reactionary opinions about, or an unjustifiable animus against, homosexuality.
Justice Kennedy does not stop at the United States in his search for evidence of historical enlightenment. He cites, among other extra-constitutional sources of authority, contemporary opinion as reflected in certain foreign legislative and judicial decisions favoring homosexual rights. But, as with his reference to changes in domestic law, his survey of foreign law is highly selective. He makes no note of foreign statutes or judicial rulings that might point in the opposite direction. Apparently, moral sentiment both at home and abroad is a one-way ratchet: it is to be favorably noted when it supports the right of sexual autonomy, but ignored or derided when it expresses opposition. More importantly, Justice Kennedy never says how or why foreign legal or political opinions have any relevance for the United States Constitution. He does not, of course, cite foreign authority as controlling precedent; but the interesting point is that he cites it at all. In any event, the implication is ominous. It is bad enough that we do not know in which direction the Court will take us next when only domestic law is at issue. Do we now have to worry that foreign law and custom will be read into the Constitution as well?
Much more could be said about Justice Kennedy’s opinion, but most of it was brilliantly articulated in Justice Scalia’s dissent, which takes the majority’s rationale apart brick by brick. Scalia points out the dangerous implications, both legal and political, not only of the Court’s decision but of living constitutionalism generally. Lawrence is substantive due process with a vengeance, perhaps the broadest application of that discredited doctrine in the Court’s history, broader even than Roe. At least the late-nineteenth- and early-twentieth-century judicial acolytes of laissez faire limited the doctrine’s application to the right of commercial contract. In Justice Kennedy’s hands, the due process clause has become an open-ended invitation for the Court to roam at will through every piece of morals legislation contained in every statute book in the nation.
This will be denied of course, and as a practical matter there is only so much damage that even a determined Court can do in adjudicating particular cases and controversies. But what the Court chooses to do narrowly, through its docket, is only the tip of the iceberg. Should the majority choose to expand upon the doctrine announced by Kennedy in Lawrence, the Justices may not have to do much heavy lifting at all. For the Court is ultimately a teacher, and by its opinions it shapes public attitudes and mores as much as, and perhaps far more than, it responds to them. Over a long period of time, a sustained judicial interest in advancing a particular ideological agenda has enormous effect, rivaling and even surpassing the rhetorical capacity of Presidents save in time of war or other grave national crisis. The civil rights revolution of the 1960s presents the relevant object lesson. When Brown v. Board of Education came down, the nation was hardly enthusiastic about school desegregation, much less the larger agenda for racial equality that would soon follow in the wake of the school decisions.
But the tenth anniversary of Brown saw the enactment of the Civil Rights Act of 1964 and all that it portended for the disestablishment of Jim Crow. Whether any or all of that would have happened without Brown is hard to say, but it seems unlikely given all that we know about massive resistance in the South and the tepid support for full black emancipation that existed in other parts of the country. The old Confederacy felt most keenly the immediate effects of federal intervention, but the rest of the nation was moved not by court or laws but by the moral instruction that lay behind them.
So when Justice Kennedy embraces a particular theory of sexual relations, and of individual autonomy generally, and incorporates it into the Constitution, those who wish to defend traditional morals legislation against judicial supremacy had best be on their guard. And make no mistake about it: what Kennedy did prompted cheers within the homosexual community and other precincts where sexual liberation is celebrated, but his opinion goes far beyond what was necessary to resolve the immediate claims in the case. He gave a kind of permission, a legal version of an apostolic benediction if you like, for people to think altogether differently not only about homosexuality as such, but about the principles of morality generally. By Justice Kennedy’s reckoning, morality is understood to be an entirely private undertaking, a thesis whose premises are already deeply planted in the schools and the country at large.
The sexual revolution of the sixties and seventies, exacerbated by the instruction of Griswold and Roe, has exacted a heavy toll not only on how people behave but on how they think about moral rules. As polling data and recent election patterns abundantly confirm, we are already dividing into “red” and “blue” nations, whose defining points of distinction have everything to do with questions of religion and morality. Kennedy‘s opinion in Lawrence is another line in the sand. It decisively takes the side of the “libertarian” nation, for whom issues of religion and morality are irreducibly private matters; and by doing so, it may be seen by traditionalists as a declaration of war—one of many in these days, to be sure, but a very important one indeed, given the power of the Court to effect change. It is of course too early to tell, but it may well turn out that Lawrence is a blessing in disguise.
My powers of prophecy are no better than the next person’s, but if I had to wager, I’d bet that the battle for public sentiment, hitherto confined (with the exception of abortion) to border skirmishes, is about to move toward a major engagement on the issue of homosexual marriage. The culture is in fact already so engaged, but most people are unaware of it unless they happen to live in Hawaii, Alaska, Vermont, Colorado, Massachusetts, or other states where the issue has already been taken up for public debate. The Supreme Court, however, has now nationalized the issue, and there will be no escaping the implications of Lawrence. Justice Kennedy said that his opinion in the case bore no necessary implications for homosexual marriage, or for laws governing bigamy, prostitution, or adultery. He may well mean what he says, but the problem lies not in what he does or does not intend, but in the logic of his argument. He may not personally wish to see the other sexually related laws crumble, and the Court may not in fact advance upon them, at least in the short term. The important point, however, is that there is nothing in the argument Kennedy advanced in Lawrence that can prevent him or his colleagues from doing so. Nor is there anything to prevent state and local judges from taking Lawrence’s reasoning and imposing the homosexual agenda by judicial fiat. Even as I write, the Massachusetts Supreme Court is poised to rule on the question of homosexual marriage under that state’s constitution. It will more than likely rely heavily on Kennedy’s rationale in Lawrence.
Despite what Kennedy says, there is no way to avoid the decision’s larger implications, which will be all but impossible to address other than by means of a national referendum. The most promising vehicle at the moment for that purpose is the proposed marriage amendment to the Constitution. What its prospects for success may be is anyone’s guess. What seems clear is that the moment for engagement has arrived.
If so, we are likely to see an argument not only about homosexual rights but about the reach of judicial supremacy and, therefore, about the right of the people to decide what kind of government they shall have. Living constitutionalism has always been prone to two fatal defects. The first is that if the most valued feature of the Constitution is its capacity to change with the times, it is far from obvious why the Supreme Court of all institutions should be vested with the authority to divine the spirit of the age. Legislatures, clearly, are better equipped for that function. For all its vaunted power, judicial supremacy exists at the sufferance of the people. As Alexis de Tocqueville noted long ago, it is as dangerous for the judiciary to get too far in front of public sentiment as it is for it to lag too far behind.
The second flaw in living constitutionalism is that, if the Constitution is an endlessly changing document, it is unclear why its provisions authorizing judicial power should be considered sacred and permanent. In its aggressive assertions on behalf of a living Constitution, the Court runs the risk of undermining the principled basis of its own authority. It may find, as Professor Bickel warned long ago, that it has no ground on which to stand.
The dangers of judicial activism and living constitutionalism have for the most part been discussed only in academic and professional circles. The Court’s opinion in Lawrence, however, may bring those dangers to the attention of a wider public in ways that could make the controversy over Roe seem mild by comparison. The public today is certainly more tolerant of private homosexual behavior than it has been in the past, but homosexual marriage is another issue altogether. If the public gets the sense that homosexual marriage could be imposed by judicial fiat—and Kennedy’s Lawrence opinion clearly opens that door—it may take matters into its own hands. And if it does, the Supreme Court had better get ready to duck.
Copyright © 2003 First Things 136 (October 2003): 26-36. Used by permission.