Constitutional Opinions: Stuck in a Rut
Rabkin, Jeremy
[~oJ ~i~ I mnl dm | nm I i . * ! ~.np'_~! u~ , j ~ i U~NN N[.,M~ ~ by Jeremy Rabkin Stuck in a Rut The Supreme Court can no longer say what it stands for. arl Warren liked to say that we "can't...
...A new majority may be more accommodating to religion in after-school settings, for example, if school officials are extremely clear that such exercises are entirely voluntary...
...So we have the ultimate affirmative action program: one set of rules for regular Americans and another for those who do need special protection...
...It simply affirmed that the matter had been settled for too long--by the Court's own rulings--to be reopened now...
...But Rehnquist did not want to challenge precedents applying non-discrimination laws to women seeking entry to all-male private clubs, like the Rotarians and the Jaycees...
...It's easy to understand why liberal justices would want Warren Court preceJEREMY RABKIN is a professor of government at ComeIl University...
...But think of the incentives now for conservative or moderate groups...
...Perhaps a Court strengthened with Bush appointees will have the votes to take clearer and stronger stands...
...But five justices still see abortion as wholly different from any other medical procedure...
...But more troubling was that this ruling was written by Chief Justice Rehnquist himself, and endorsed by Justices Kennedy and O'Connor, who often vote with the conservative bloc...
...Justices 48 S r t e m b r r 2 o o o _9 The American Spectator Stevens, Sourer, Ginsburg, and Breyer argued in Dale that states should be left to experiment with different regulatory schemes, tailored to the concerns of local electorates...
...In striking this measure, the Court did not claim that this policy violated the Fifth Amendment guarantee against selfincrimination...
...women who might want to have an abortion suffer some uneasiness...
...The issue in Diekerson v. United States was when Congress could authorize federal prosecutors to use confessions as trial evidence...
...But in the context of other rulings this term, his outrage made sense...
...If the majority in Dale betrayed a bad conscience, the dissenters seemed without a judicial conscience at all...
...In Sante Fe School District v. Doe, Justice Stevens explained (for the six justices in the majority) that the Constitution can't allow students to elect a student speaker to preside over an opening ceremony at an after-school football game, because that student speaker might offer a prayer...
...The statute under challenge had authorized such use if the confession seemed entirely voluntary even though the suspect had not actually been read his Miranda rights ('~ou have the right to remain silent, the right to an attorney...
...But in Carhart, the state sought to prevent doctors from mangling the limbs and crushing the heads of fully formed babies, halfway out of the womb-a procedure that Senator Moynihan, who usually votes on the prochoice side, described as "too close to infanticide...
...Why protect the Court's decisional authority if that authority is so often abused...
...As the Court sees it, those who need special protection also include those who are offended by religion...
...Quite a few justices think it is the Court's job to protect people from uneasiness...
...Rehnquist managed to scrape up five votes for the claim that the free speech guarantee of the First Amendment requires that the Boy Scouts be allowed to determine their own membership...
...So in Hill v. Colorado, six justices agreed that pro-life demonstrators shouldn't be allowed to distribute literature outside an abortion clinic because that might disturb people seeking the clinic's services...
...So the new game for liberal justices is simply to stop the clock...
...In Carhart, these justices knocked down a policy already adopted by more than 30 states...
...The Boy Scouts have been reticent on the subject of sexual conduct, so it's not at all clear that their "message"--the message they are organized to send, in the majority's analysis-would be diluted or affected by admitting a gay scoutmaster...
...Maybe not...
...Must we hear endless reruns of the r984 Mondale campaign, carrying on about the terrible threat of the "religious right...
...The dissenters in Dale have a point when they claim that the majority opinion, by failing to reconcile its holding with past precedents, appears to imply that homosexual affiliations are uniquely noxious...
...But abortion is different...
...In Stenberg v. Carhart, all four then turned around to overturn Nebraska's law prohibiting partial birth abortion (this time, with a crucial fifth vote supplied by O'Connor...
...Justice Stevens took the trouble to explain in Dale that "unfavorable opinions about homosexuals...have been nourished by sectarian doctrine...
...All sides have strong incentives to ignore federalism and ignore the Court's own precedents-as the Court itself does, when it likes the cause enough...
...If the state may have an interest in protecting homosexuals from gratuitous insult, might it not also have an interest in protecting newly-born or nearlyborn babies from something more horrible...
...well, the opinion gets vague at that point, but evidently the unwilling auditors of such a prayer feel at risk of being transformed into pumpkins...
...arl Warren liked to say that we "can't turn back the clock...
...Isn't that a little upsetting, too...
...What congressman or senator will worry about federalism questions-and what advocacy group will have any patience for his worries-when the Court itself treats these questions so capriciously...
...And, of course, some of that same "atavistic opinion" (as Stevens also calls it) nourishes objections to abortion...
...But it's hard to see who will rally to this program if it operates according to the ease-by-ease whims of the justices...
...In Dale they said distaste for homophobia was more than enough reason to impose a state regulation...
...Does the state not have a legitimate interest in protecting public confidence in the medical profession, and doesn't allowing doctors to perform such atrocities undermine confidence in the medical profession...
...But as the four dissenters contend, this line of argument is not entirely convincing...
...Rehnquist could have said that anti-discrimination laws can reach commercial firms to assure equity in the workplace but private, non-profit, recreational activities are beyond the reach of such state controls...
...Even the liberal justices were prepared to accept this reasoning when the Court declined to interfere with state prohibitions on physician-assisted suicide a few years ago...
...Rehnquist could have tried to distinguish gay rights measures from anti-discrimination measures dealing with immutable characteristics like race and sex-except that would have required challenging the precedent in Evans v. Romer, holding that Colorado voters were "irrational" in approving a state-wide ban on gay rights measures (in an opinion endorsed by Kennedy and O'Connor, who were needed to reach five votes in Dale...
...But the opinion, also by Rehnquist, doesn't explain why the Court's authority should be protected...
...The liberals are back to where they were for two decades after Roe v. Wade, insisting that nothing must be done to raise questions or second thoughts, lest More troubling was that this ruling was written by Chief Justice Rehnquist himself...
...Only Justices Scalia and Thomas, in a stinging dissent, noted that the majority opinion gives no serious reason for striking down this law, other than the Court's determination to preserve its own decisional authority--though a majority of the Court's majority here had voiced doubts, in prior cases, about the original precedent on which the Court now relied...
...I n fact, abortion isn't the only exception...
...Scalia's angry tone may have been excessive given the actual stakes in this case...
...N The American Spectator - S e p t e m b e r 2 o o o 49...
...It did not claim that the structure of the Constitution or the logic of police work made Miranda warnings essential...
...Can't we get past the otd polarizing stereotypes...
...In such cases, we were told, the First Amendment could not brook any compromise simply to spare the sensibilities of particular groups...
...Rehnquist could have said that these clubs had some connection with business opportunities, because their members were adults, generally concerned with business connections-except this argument would have required the Court to challenge past cases applying non-discrimination requirements for private schools even at the elementary school level...
...A string of rulings in late June suggests the strategy may be working...
...dents enshrined for all time...
...Perhaps liberals were never going to be serious defenders of states rights, anyway...
...A majority of the Court still thinks these troublemakers need to be kept in their place...
...The Court's revival of federalism seemed to promise a way of defusing the most explosive social issues by letting each state work out its own compromise...
...You know, they could require school principals to read the students their Miranda rights...
...Of course, the liberal justices, who were so concerned about state autonomy in Dale, were solidly opposed to these rulings...
...So the Court ended up with a narrow, weak opinion that seems to cover the Boy Scouts but no one else...
...No doubt, this implication is upsetting to homosexuals and to many other people...
...The dissenters protested that the Court's approach threatens to give any group a "free pass out of anti-discrimination laws" by claiming (after the fact, if necessary) that "discrimination" is vital to its purpose...
...In Dale v. Boy Scouts of America, which upheld the right of the Boy Scouts to exclude homosexual scoutmasters, Scalia and Thomas were in the majority...
...Why should they feel any constraint about pushing for congressional restrictions on abortion, when the Court insists that abortion really is a national issue...
...But I expect more mushy compromises to gather the requisite five votes...
...The Court was back to struggling over abortion and school prayer, as if nothing had changed since the 197o's...
...In Dale, the liberal justices protested the judicial veto of a policy that only New Jersey had tried to apply to the Boy Scouts...
...Just this year, the Court struck down provisions of the Violence Against Women Act and the Age Discrimination Act for improperly extending federal standards into areas reserved for the states...
...In Carhart the liberals complained that there is no real reason for this restriction except to show distaste for abortion...
...And those who don't agree with prayer will be...
...But over the past decade, conservatives on the Court have revived doctrines on federalism and property rights thought to have been abandoned since the 193o's...
...In an almost poetic twist, the Court even found itself arguing about Miranda warnings--a requirement read into the Constitution back in 1966 , in the heyday of the Warren Court...
...The ACLU used to boast of its success in getting courts to allow Nazis to march in Skokie, a Chicago suburb with a large number of Holocaust survivors...
...Perhaps it amounts to the same thing...
...T he majority could have said many things in defense of the Boy Scout policy...
Vol. 33 • September 2000 • No. 7
