What The Court Betrayals Portend
July 2 2003
Last week's Supreme Court decisions, allowing states to use racial
preferences to promote blacks and striking down the Texas anti-sodomy law,
testify to three decades of failure of Republican presidents to restore that
court to constitutionalism.
Anyone who still thinks this court is conservative deludes himself and deceives
those people who have voted, again and again, to stop these renegade justices
from imposing their ideology upon our society.
Consider. Of the nine sitting justices today, seven were nominated by
Republicans. Two of the seven, John Paul Stevens, named by Ford, and David
Souter, a Bush I nominee, voted not only to strike down the sodomy laws of every
state, but to permit 20 points to be added to the score of black high-school
students applying to the University of Michigan.
But it was Sandra Day O'Connor, the first Reagan nominee, whose performance
would have broken the heart of the president who thought he was naming a
conservative champion of the Constitution.
In the 5-4 ruling upholding affirmative action, O'Connor held that race
discrimination against whites at Michigan Law School is permissible, if the goal
is the "compelling state interest" of "diversity." "We expect," said O'Connor,
"that 25 years from now the use of racial preferences will no longer be
Yet another generation of white kids can thus be kept out of state schools to
which they should have been admitted based on achievement and ability alone.
This is what now passes for equal justice under law.
The decision striking down the Texas anti-sodomy law was 6-3, with Clinton
nominees Stephen Breyer and Ruth Bader Ginsburg joined by Stevens, Souter,
O'Connor and Reagan nominee Anthony Kennedy.
In the Texas decision, the Court overturned a 17-year-old precedent and tossed
out the laws of almost a dozen states to create a constitutional right to engage
in homosexual acts. What James Madison never saw in the U.S. Constitution which
he wrote, and 12 generations of jurists never found, this pair – Kennedy and
O'Connor – discovered.
The Court has now virtually stripped states of the power to legislate in the
realm of sexual morality. By creating a right of consenting adults to engage in
homosexual acts, the Court has also put in jeopardy all state laws against
incest, gay marriage, prostitution and pedophilia, assuming the youngster
At "Gay Pride" festivals this past week, there was anticipated rejoicing,
underscoring Justice Antonin Scalia's barbed comment that the court has thrown
off all judicial restraint and joined the culture war.
Of greater import, however, was the reaction among the politicians. When the
decisions came down, Democrats hailed both, though neither the "gay"-rights
agenda nor affirmative action is popular with a majority of Americans.
When the decision permitting racial preferences for 25 more years was handed
down, Democratic Party Chairman Terry McAuliffe and candidates Gephardt, Kerry,
Edwards and Lieberman all celebrated it.
What was President Bush's reaction? This mushy statement of resignation: "I
applaud the Supreme Court for recognizing the value of diversity on our nation's
campuses. Diversity is one of America's greatest strengths. Today's decision
seeks a careful balance between the goal of campus diversity and the fundamental
principle of equal treatment under law."
Democrats were also jubilant over the O'Connor 6-3 ruling that struck down the
Texas law President Bush had defended as governor. But the White House went
dark, and silent.
What do these decisions and reactions tell us? Not only is the Supreme Court
lost to conservatism and constitutionalism, it has, like the Warren Court before
it, become an active belligerent against Middle America in the social and
culture wars between Christianity and secularism on one side and tradition and
modernism on the other.
The Court neither respects nor trusts majority rule. It assumes its own moral
superiority and right to impose its values upon a society it deems too retarded
to see the light. The GOP Congress and Republican Party have not the will nor
desire to confront it. As for President Bush, like his father before him, he is
a conscientious objector in the culture war.
When a battle is engaged, invariably, this administration turns up AWOL. Where,
then, do the people turn? One place is to Ward Connerly, who intends to petition
to put on the Michigan ballot a referendum stating simply that, in hiring,
firing and admissions to state schools, there shall be no discrimination and no
preferential treatment based on race.
With the Democratic Party arrayed against it, and the GOP unreliable allies,
Middle America must start looking to itself to find the leaders to take back a
country taken away from them, undemocratically, by a renegade Supreme Court that
Republicans are no longer even trying to rein in.
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