Nation readers should be excused for wondering whether they were in some sort of time warp as the Supreme Court closed its term with a slew of decisions that recalled the halcyon days of


Nation readers should be excused for wondering whether they were in some sort of time warp as the Supreme Court closed its term with a slew of decisions that recalled the halcyon days of Chief Justice Earl Warren. In a single week, the Court upheld affirmative action, issued a trailblazing gay rights decision, reversed a death sentence for ineffective assistance of counsel (for only the second time in the two decades that this right has existed) and threw out a sex offense conviction for violating the Constitution’s ex post facto clause.

And that’s not all. Earlier in the term, the Court shocked Court-watchers by ruling that Congress could require the states to pay damages for violating the Family and Medical Leave Act, halting in its tracks a troubling line of states’ rights decisions. It made it extremely difficult for states to medicate mentally incompetent criminal defendants in order to render them competent to stand trial. And it upheld, against a right-wing “property rights” challenge, a critically important state program for funding pro bono legal services with the interest from lawyers’ trust accounts.

What’s going on here? Is this the same Supreme Court that contravened all its own principles to find in the equal protection clause a basis for anointing George W. Bush as President in the 2000 election, that has systematically eroded the Constitution’s protections for the criminally accused and that has shown far more concern for the rights of state treasuries than of abused citizens? How does one explain this sudden concern for individual rights and equality?

It’s true that the Court’s most recent decisions don’t provide a complete picture of the term. Other decisions seem more familiar. In a pair of due process cases, the Court held that foreign nationals can be locked up and citizens can be put on sex offender registries without individualized hearings. It declined to find any constitutional barrier to imposing the death penalty on minors. It refused to find any problem with California’s “three strikes” law, which resulted in a sentence of at least fifty years without parole for two minor shoplifting offenses. And it allowed Congress to use its purse strings to force libraries to place overbroad “porn” filters on their computers, establishing a dangerous precedent for the use of federal funds to achieve censorious results.

In addition, the “victories” have to be viewed in context. Grutter v. Bollinger, the affirmative-action decision, merely cemented what has been, in practice, the status quo for twenty-five years, ever since the Court’s Bakke decision. The reason holding the line is considered such a victory is that the Court has cut back so much on equal protection since Bakke, committing itself to an illusory ideal of “colorblindness” that is willfully blind to the fact that race still matters. Lawrence v. Texas, the gay rights decision, simply corrects the wrong the Court committed in Bowers v. Hardwick seventeen years ago, when it narrowly upheld a sodomy statute with the tortured reasoning that since gays and lesbians have been repressed and vilified from time immemorial, it cannot be unconstitutional to continue to do so. And Congress’s ability to impose damages on states for violating the Family and Medical Leave Act was only in question at all because this Court in the past ten years has created a states’ immunity jurisprudence out of whole cloth, jettisoning its own supposed commitment to strict construction.

Still, the legal world we live in is one forged over the past two decades by a conservative Rehnquist Court, and, in that light, it is important not to understate the importance of the Court’s most recent decisions. Lawrence in particular is a stirring affirmation of both the equal dignity and worth of gays and lesbians, and of the right of all consenting adults to engage in private sexual conduct of their choice without state intervention. Bowers was the Dred Scott of the gay rights movement, subjecting an entire people to second-class status, and its overturning, in Justice Anthony Kennedy’s ringing terms, will forever be seen as the turning point in constitutional gay rights jurisprudence. The Court is simply catching up to the rest of society on the issues of gay rights and sexual freedom, but its decision will nonetheless prove indispensable in the ongoing fight for full inclusion of gays and lesbians in the body politic.

But perhaps the most important point about this term is the crucial role played by Justices Sandra Day O’Connor and Kennedy. O’Connor was in the majority in all but two of the Court’s fifteen 5-to-4 decisions this term, illustrating the inordinate power she wields. Kennedy was in the majority in seven of the 5-to-4 decisions. Together, they made this term a homage to Justice Lewis Powell, a moderate Southern conservative. In Grutter, O’Connor’s vote transformed Justice Powell’s approach, advanced twenty-five years ago in a lone opinion joined by no one, into the majority view of the Court. In Lawrence, Justices Kennedy and O’Connor both voted as Justice Powell would have were he on the Court today. (Powell voted with the majority in Bowers but admitted after resigning that it was the one vote he’d most like to change in fifteen years on the bench.)

The Powell parallel is telling for another reason. When Powell stepped down, the man President Reagan first chose to replace him was Robert Bork. Civil rights, women’s rights and civil liberties groups protested that Bork’s extreme right-wing views made him unacceptable. He maintained, among other things, that the Constitution should not even protect married couples’ right to use contraception. In the end, President Reagan appointed Anthony Kennedy, who went on to cast a decisive vote, with O’Connor, to uphold Roe v. Wade in 1992 and to overturn Bowers this year. Conventional wisdom often laments the effect that Bork’s defeat had on the process for selecting judges. But had Bork been confirmed, there would very likely have been nothing to celebrate this year. Keep that in mind when it’s George W. Bush’s turn to replace a sitting Justice.

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