Interesting characterization of the just closed Supreme Court term in the NYTimes editorial today. The voice sounds like Gail Collins. My only argument with it is that if you look at issues involving the rights of defendants in criminal cases it doesn't look so moderate.
A Moderate Term on the Court
nytimes.com
Th' supreme coort," Mr. Dooley famously observed, "follows th' iliction returns." A century after Finley Peter Dunne's fictional Irish saloonkeeper made the point, the court has put an interesting spin on Mr. Dooley's theory. At a time when President Bush and his Republican majority in Congress are continually arguing that they have the mandate to appoint extreme conservatives to the federal bench, the highest court of all has surprised many people with its moderation. The Supreme Court, it appears, is better at reading the election returns than some elected politicians.
Conservative legal groups had high hopes that the nine justices — seven of whom were appointed by Republican presidents — would issue a landmark ruling this term striking down affirmative action. But Justice Sandra Day O'Connor, joining the court's most liberal members in a 5-to-4 vote, upheld the University of Michigan's use of race in admissions. By endorsing the consideration of race, but barring quotas and rigid formulas, the court essentially ratified an existing national consensus.
In the term's other blockbuster decision, the court ruled 6 to 3 that gay sexual relations are constitutionally protected. In doing so, it erased one of its own worst precedents, the 1986 decision in Bowers v. Hardwick, and struck an important blow for gay rights generally. And it brought the law in line with evolving popular opinion, which now solidly holds that private consensual sex should be legal, and that gays should not be subject to discrimination.
The court surprised the legal community by halting, or at least pausing in, its aggressive states' rights crusade. Until this term the conservative majority, led by Chief Justice William Rehnquist, had been steadily whittling away at Americans' rights under federal law. It struck down the Violence Against Women Act on "federalism" grounds, and held that the nation's 4.8 million state employees are only partly protected by federal disability and age discrimination laws. But this term the court, in an opinion by Chief Justice Rehnquist, rejected a federalism claim and held that state workers are fully protected by the Family and Medical Leave Act.
Unfortunately, the court's inclination to stick to the mainstream meant it did an uneven job of protecting the marginalized from the excesses of the majority. The court callously turned away a challenge to California's "three strikes" law by a man who was given a sentence of 50 years to life for stealing $150 worth of videotapes from Kmart. Justice O'Connor, whose status as the court's critical swing vote was solidified this year, provided the majority with its fifth vote in that case. But she was also the swing vote to uphold Interest on Lawyers' Trust Accounts, a vital source of funds for legal services for the poor nationwide that was challenged by conservative legal groups.
This term showed just how far right the court's three most conservative members are. The dissent in the gay sex case — by the chief justice, Antonin Scalia and Clarence Thomas — fulminated, like a talk show rant, about a "homosexual agenda." But there is no equivalent core of justices on the left trying to push beyond the legal expression of mainstream American thought. No justice wrote separately to say the principles the court laid down offer support for gay marriage. On subjects from civil rights to criminal law, the ideological spectrum ranges from the far right on one side to liberal centrism on the other.
The final week of the session, when the decisions on affirmative action and the sodomy law came down, are sure to energize right-wing activists, who were already upset with the court's moderation and vowing to fill the next vacancy with another Justice Scalia or Justice Thomas. An extreme choice for a single slot could have a profound impact on American life — limiting the ability of the federal government to protect the environment, and ending affirmative action and, perhaps, abortion rights. The court's performance over the last nine months was not perfect, but it generally reflected the best instincts of the American people. The Senate, and public, must not allow this to change. |
