The Public Policy: Stuck in the Middle
Rabkin, Jeremy
"The Public Policy: Stuck in the Middle" Stuck in the Middle by Jeremy Rabkin sent with Scalia, once with Thomas and Expect more mush from the high court, even if Dole wins. never with Rehnquist....
...ri T H E P U B L I C P O L I C Y 0 Stuck in the Middle by Jeremy Rabkin sent with Scalia, once with Thomas and Expect more mush from the high court, even if Dole wins...
...On a divided court, O'Connor and Kennedy usually determine the outcome: the Court goes where they gowherever that is...
...On other fronts, conservative initiatives have been even more hesitant-and remain at least equally embattled on the Court...
...This may not be enough to make the future of the Supreme Court a rousing issue in the current campaign...
...So, too, with the Court's ongoing determination to enforce its notion of secular etiquette in public institutions...
...The Court decided no important cases on racial preference this past term, except for the voting rights cases from Texas and North Carolina...
...Still, the 6-3 margin of the supporting majority was not exactly a close call...
...Republican victory might mean a chance to block an augmentation of liberal voting strength on the Court, but it's unlikely to mean a dramatic change in direction...
...Decisions of past years, for example, indicate that there are still six votes on the current Court for continuing broad constitutional protection for abortion: it is unlikely that two of these six will retire in the next four years...
...It is notable, however, that the policy of crowding minority voters into specially tailored districts has worked to the electoral advantage of Republicans, as surrounding districts were drained of minority voters...
...I n Franklin Roosevelt's second term, the Supreme Court abandoned its resistance to New Deal policies...
...In areas where a tougher line against racial preferences would rouse more genuine political resistance, the Court has...
...When McReynolds finally retired in 1941, his sense of defeat was overwhelming...
...Bush placed one very staunch conservative, Clarence Thomas, while his other appointee, David Souter, has turned out to be as reliably liberal in his attitudes as Breyer and Ginsburg...
...The Court did venture a reaffirmation of the Eleventh Amendment's protection of the states from being sued without their consent...
...But the majority opinion in Seminole Indians v. Florida Gaming Commission (opposed by Breyer, Ginsburg, Souter, and Stevens) was not very clear on how far it would extend the doctrine it invoked here...
...A Court decision allowing more scope for religious expression or for traditional moral standards would likely be characterized as a concession to Christian "fundamentalists...
...The Court found no occasion this year to clarify its 5-4 decision of 1995, holding that the congressional commerce power could not be stretched to cover entirely local, non-commercial activities (as with the showy but pointless federal law in that case, prohibiting the carrying of firearms in the vicinity of public schools...
...burg and Stephen Breyer-have turned out to be exceedingly reliable liberal votes...
...Only Justice James McReynolds, though already in his late seventies, clung to his seat, determined at least to deny Roosevelt the satisfaction of determining his successor on the Court...
...The conservative block of Thomas, Scalia, and Rehnquist dissented in a third of these cases (each dissenting in thirteen decisions-usually the same ones), while a generally firm liberal block of Souter, Breyer, and Ginsburg dissented in almost the same proportions (though, of course, in a different set of cases...
...A decision to accord more procedural claims to convicted murderers (of which there were two more this term) will never be characterized as a gesture to criminals...
...Even Ford's one appointment, John Paul Stevens, managed to play out both sides of the Republican potential, evolving from a cautious, skeptical centrist in his early years on the Court to a cranky liberal codger, as if he had inherited the role from Harry Blackmun (who displayed a similar trajectory in his two decades on the Court...
...The argument seems to carry weight with very few of his fellow justices...
...With O'Connor and Kennedy continuing to side with the conservative block on this issue, the Court extended its recent attacks on racially gerrymandered districts-to the loud objections of Breyer, Ginsburg, Souter, and Stevens...
...So a Democratic president is likely to get what he wants from his judicial nominees, while a Republican is lucky if he does...
...Over the last thirty years, conservative politics has battened on opposition to Washington arrogance...
...He joined only once in a dis 54 September r 9 9 6 • The American Spectator been far more circumspect...
...0 f course, even a slight change in the membership of the Court could change the outcome when the Court revisits such closely contested issues...
...See Terry Eastland, page 6o...
...Even Justice O'Connor, whose health problems have prompted rumors of early retirement (though she is six years younger than Rehnquist), might be replaced without dramatic effect...
...Clinton's two nominations to the Court-Ruth Bader Gins...
...The Court's apparent endorsement of gay rights this past term did, however, confirm that there remains a solid majority prepared, as Justice Scalia put it, to "take sides in the culture war"-on the liberal side...
...Justice Kennedy's opinion had no clear precedents behind it and was not at all tightly reasoned...
...This year, the Court found no cases worth taking up in this area even to entertain changes at the margin...
...For this reason it is unlikely to be seriously challenged, even if new appointments add new strength to the Court's liberal block...
...If Rehnquist were replaced by a Clinton appointee, the prospects for the Court's conserva 44 Breyer joined only once in a dissent with Scalia, once with Thomas, and never with Rehnquist...
...It will be very sad for Republicans if the country doesn't repudiate Clinton's slickness, even now, with all his scandalous past brought into public view...
...The squishy core of the Court remained Justices O'Connor and Kennedy, who voted with the majority in all but seven of the disputed cases (that is, more than four-fifths of them...
...When he made this argument in defense of Virginia Military Institute's all-male status, he got no one at all to join in his dissent from the feminist fustian in Justice Ginsburg's majority opinion...
...Ginsburg's voting pattern was similar, though tending a bit more toward the mean...
...The decision in Romer v. Evans struck down a Colorado measure that imposed no constraints on homosexuals but simply excluded "homosex ual orientation" as a category from nondiscrimination measures...
...One by one, the most obdurate conservatives on the Court retired and were replaced by firm supporters of Roosevelt policies...
...In the thirty-nine cases where the Court divided over the proper outcome, Justice Stevens was at odds with his colleagues in well over half of them (21...
...In this respect, at least, the current presidential election bears a sad analogy for Court watchers...
...55 The American Spectator . September 19 9 6...
...In the short term, the question is not just which president will make the next appointments but which justices will be retiring to make way for new appointments...
...The Court presumably refused to hear an appeal-despite loud criticism of the appeals court ruling from the higher education establishment-because it cannot decide what it wants to do in this area...
...To see the point, one need only compare Clinton's appointments with those of his predecessors...
...For all that, imposing curbs on the most abusive forms of special preference is probably the most promising initiative of the Court conservatives...
...JEREmY RABYJN teaches political-science- at Cornell University...
...Reagan turned out to be only slightly more successful, with two reasonably firm conservative appointments (Scalia and Rehnquist) and two lost souls (Kennedy and O'Connor), who are as ready to flirt with one side as the other, as long as the argument is suitably muddled...
...The Supreme Court, the most fortified bastion of Washington arrogance, was never likely to be turned around by a few deft nominating decisions out of the White House...
...For many Dole backers, the constitutional stakes may simply be between inevitable dismay and likely disappointment...
...And while the Court's new line in this area effectively condemns the enforcement policies (under the Voting Rights Act) of past Republican administrations, it embraces the rhetorical posture of Republicans by resisting racial quotas...
...The Court's policy here is not likely to face strong political opposition...
...Y1 tives would certainly be dimmer...
...Only the three conservative justices have voiced consistent support for a serious rethinking of the Court's First Amendment jurisprudence in this area...
...If the country moves more steadily and emphatically in a conservative direction, the Supreme Court will follow in time-or a more confident Congress can force it to retreat...
...Chief Justice Rehnquist, now 72, has had health problems...
...None of this should be too surprising...
...But conservatives still have to win more decisively in the country...
...In last year's Adarand decision, challenging racial set-asides in federal contracting programs, only two justices (Thomas and Scalia) endorsed a blanket rejection of racial decision-making in the same clear terms as the appeals court ruling in Hopwood...
...Justice Stevens, however, is two years older than Rehnquist and his replacement by Clinton might not make much difference at all to the current balance on the Court...
...Perhaps this should not even be too discouraging...
...But regarding the Supreme Court, the election is not likely to change the discouraging overall trend for conservatives...
...Any country that elects Franklin Roosevelt three times," he remarked to a friend, "is not worth saving...
...And this term, as in the recent past, that wasn't very far in any direction...
...Gay rights and militant feminism, whatever their weakness in the broader electorate, are very powerful in the law schools (hence among clerks) and also very entrenched in the elite media (hence among the most prominent interpreters of the Courts performance...
...At the end of this term, for example, the Court decided that it would not hear an appeal of the Fifth Circuit's Hopwood decision, which struck down an admissions quota at the University of Texas Law School on the ground that race should never be a factor in admissions...
...In the October 1995 term that ended in July 1996, numbers alone tell much of the story...
...And a Dole victory by itself won't do that...
...In the current climate, a judicial appointee must have strong convictions and genuine stren of character to hold to conservative positions on the Court...
...Breyer was more than twice as likely to be found at the side of Souter, Ginsburg, and Stevens as he was to be voting with Rehnquist, Scalia, or Thomas...
...Thus the Court's new policy, though denounced by judicial liberals, brings unvoiced relief to Democrats...
...While a second Clinton term might put an end to some recent conservative initiatives on the Court, a Dole victory next November is unlikely, by itself, to put the most controversial liberal Court doctrines at comparable risk...
...Justice Scalia urged in this case as in several others that the Court should show deference to policies or practices with centuries of tradition...
...Justice Ginsburg's pattern was similar...
Vol. 29 • September 1996 • No. 9
