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Culture Clips - July 21, 2005

No More Souters

The Legacy of Previous GOP Supreme Court Picks

As President Bush contemplates his Supreme Court nominee, one fact to keep in mind is that seven of the nine current Justices were appointed by Republican Presidents. If you want to understand why many of Mr. Bush's supporters are worried that he might nominate Attorney General Alberto Gonzales, this is the reason.

The objection isn't personal, and it isn't even about what Mr. Gonzales thinks; the concern is that virtually no one knows what he thinks. Mr. Gonzales's brief tenure on the Texas Supreme Court and his behind-closed-doors advice as chief White House counsel shed little light on what his judicial philosophy would be. And the record across recent decades is that justices who join the High Court without a clear and confident jurisprudence eventually become part of what has been a longstanding liberal majority.

Earl Warren, the father of modern judicial activism, was an Eisenhower appointee. So was William Brennan, who inherited Warren's mantle as the Court's liberal giant. Harry Blackmun, the author of Roe v. Wade, was a Nixon appointee.

The most liberal member of the current court, John Paul Stevens, was a Gerald Ford selection. David Souter, a George H. W. Bush and Warren Rudman choice, told the Senate he saw himself in the tradition of the great Justice John Harlan, who revered precedent. But on the court he's arguably been more of a liberal activist than either of Bill Clinton's two justices (Ruth Bader Ginsburg and Stephen Breyer).

Anthony Kennedy, selected by Reagan after Robert Bork was defeated, was said at the time to share 80% of Mr. Bork's philosophy. But Mr. Kennedy's jurisprudence has proven to be nearly as malleable as Justice Souter's, especially on the cultural and church-state issues where the Court has become the de facto national legislature.

Opinion Journal
http://www.opinionjournal.com/editorial/feature.html?id=110006984

Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution, whether it rules truly or not, the court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic Constitution, and philosophical incompetence is lethal.

The court's philosophy reflects, or rather embodies and advances, the liberationist spirit of our times. In moral matters, each man is a separate sovereignty. In its insistence on radical personal autonomy, the court assaults what remains of our stock of common moral beliefs. That is all the more insidious because the public and the media take these spurious constitutional rulings as not merely legal conclusions but moral teachings supposedly incarnate in our most sacred civic document.

That teaching is the desirability, as the sociologist Robert Nisbet put it, of the "break-up of social molecules into atoms, of a generalized nihilism toward society and culture as the result of individualistic hedonism and the fragmenting effect of both state and economy." He noted that both Edmund Burke and Tocqueville placed much of the blame for such developments on the intellectual class — in our time dominant in, for example, the universities, the media, church bureaucracies and foundation staffs — a class to which judges belong and to whose opinions they respond. Thus ever-expanding rights continually deplete

America

's bank of common morality.

Consider just a few of the court's accomplishments: The justices have weakened the authority of other institutions, public and private, such as schools, businesses and churches; assisted in sapping the vitality of religion through a transparently false interpretation of the establishment clause; denigrated marriage and family; destroyed taboos about vile language in public; protected as free speech the basest pornography, including computer-simulated child pornography; weakened political parties and permitted prior restraints on political speech, violating the core of the First Amendment's guarantee of freedom of speech; created a right to abortion virtually on demand, invalidating the laws of all 50 states; whittled down capital punishment, on the path, apparently, to abolishing it entirely; mounted a campaign to normalize homosexuality, culminating soon, it seems obvious, in a right to homosexual marriage; permitted discrimination on the basis of race and sex at the expense of white males; and made the criminal justice system needlessly slow and complex, tipping the balance in favor of criminals.

How did this all start? Several “strands” of major Supreme Court decisions, bound together, have dismantled older constitutional understandings and enshrined the new morality. On the questions of marriage, family, and sex, that string begins with the 1965 Griswold decision. In that case, a Connecticut law that outlawed the use of contraceptives, even by married couples, was ruled unconstitutional. Now, before you jump to conclusions, let me clearly state that this law was badly written, and I would not have supported it or its intent. Nonetheless, it is in this case that the Court “discovered” a “right to privacy” in the U.S. Constitution. Of course, such a right does not appear anywhere in the text of the Constitution. Rather, the Court’s majority discovered — or invented — such a right from the “emanations” and “penumbras” of rights found in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

It is significant that what seems to have been decisive in the minds of some of the justices in the Griswold majority was actually something quite traditional in the common law: the notion that marriage was a privileged institution into which law should not interfere. The case involved Planned Parenthood dispensing contraceptives to a married couple, and throughout the decision, it was marital privacy that was discussed. So, an aspect of the traditional moral view was a motivation for the Court’s majority decision: But the jurisprudential novelty it established — the right to privacy — would quickly become a constitutional wrecking ball.

Justices Stewart and Black were scathing in dissent, observing that while both disagreed with the law personally (as do I), they could find nothing in the U.S. Constitution that prevented the Connecticut legislature from making such a law (which had been on the books in the state since 1879). The dissenting justices mocked the reasoning of the majority, which in some cases based itself not on the Constitution’s text, but rather on the “traditions and [collective] conscience of our people.” How, asked the dissenters, could the Court know the conscience of the people better than legislators? Did not such reliance lead only to the substitution of judges’ “personal and private notions” for the decisions of legislatures? “Use of any such broad, unbounded judicial authority would make of this Court’s members a day-to-day constitutional convention,” warned Justice Black. And so it has been! Finally, Justice Black observed that “privacy” is a “broad, abstract and ambiguous concept,” lacking the specificity of a genuinely constitutional rule. However traditional it may appear in the guise of marital privacy, which as a legislator I support, this novel right was bound to do harm in our jurisprudence.

And so it was and so it did. Just seven years later, in Eisenstadt v. Baird (1972), the Court struck down a Massachusetts law that made contraception legal only for married persons. The distinction between the married and unmarried was breached, and the “right of privacy” became unhinged, essentially protecting (heterosexual) sex, as such, from any moral regulation.

Again, although I disagree with the Massachusetts law and its intent, the Court’s solution to the problem presented by such a law was neither judicious nor prudent: The Court in effect codified the sexual revolution then underway — with the supremely powerful protection of a constitutional right. Marital privacy had now morphed into “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The arguably traditional marital dimension upon which the Court had discovered the new “privacy right” was simply dropped with respect to having heterosexual intercourse. Rather than encouraging the legislature to repeal an outdated law, the Court expanded further the ungrounded right to privacy.

There have been many bitter complaints from teachers and principals about the Bush administration's "No Child Left Behind" act — and more specifically about having to "teach to the test" instead of doing whatever teachers and principals want to do.

Not only have test scores in math and reading shown "solid gains" in the words of the New York Times, young black students have "significantly narrowed the gap" between themselves and white students. All this is based on official annual data from 28,000 schools across the country.

What is especially revealing is that it is the young black students who have made the largest gains while older minority students "scored as far behind whites as in previous decades."

In other words, the children whose education has taken place mostly since the No Child Left Behind act show the greatest gains, while for those whose education took place mostly under the old system, it was apparently too late to repair the damage.

Do not expect either the New York Times or the education establishment to draw these conclusions from these data. Nor are black "leaders" likely to pay much attention, since they are preoccupied with such hustles as seeking reparations for slavery.

"By their fruits ye shall know them" may be an ancient adage but results take a back seat to dogma when it comes to the education establishment. That is why there has been so little to show for all the additional billions of dollars poured into American education during the past three decades.