Sound and fury signifying–what, exactly?
Two decisions made in the closing days of the Supreme Court’s term–rejecting Louisiana’s death penalty for child rapists and tossing out the District of Columbia’s handgun ban–were each stringently narrow in their immediate import. Yet they sent presidential and Congressional candidates of every stripe scrambling to score easy points.
The most disappointing voice belonged to Barack Obama, who rushed to condemn the Court’s 5-to-4 death penalty ruling. Obama’s calculation is understandable. In 1988 the proudly card-carrying ACLU-er Michael Dukakis was asked in a debate if he would support the death penalty for the hypothetical rape and murder of his wife, Kitty. Dukakis reiterated his opposition to capital punishment, but, of course, there is no satisfactory sound bite answer to such an insidious question, and the moment hurt his campaign badly. Obama, with his two young daughters, could be even more vulnerable to such a ploy.
Yet Obama, the constitutional law professor, surely knows better. As Justice Kennedy pointed out, the sexual assault of children is a crime so emotional that it can “overwhelm a decent person’s judgment,” leading to death sentences “so arbitrary as to be freakish.” Kennedy’s invocation of “evolving standards of decency” means that the Court–without abandoning the death penalty outright–continues down the path of narrowing capital punishment, slowly dragging the country into alignment with most of the world. With an unequivocal majority opinion as precedent, the issue has been decided for years to come; all of the political noise around this ruling–including Obama’s statement–is just that, noise.
The DC handgun case was even more symbolically laden–and yet even more unclear in substance. In his 5-to-4 majority opinion striking down the District’s near-universal ban on handguns, Justice Scalia threw the weight of the Court behind the historically dubious view that the Second Amendment’s right “to keep and bear Arms” extends to individual handgun ownership rather than “the people” in its collective self-defense mode. But even the usually polarizing Scalia made it clear this was the narrowest of rulings and “should not cast doubt” on a wide range of handgun regulations. Indeed, Scalia explicitly gave the nation’s courtrooms permission to continue their handgun bans, thus affording judges a zone of safety not granted the residents of the nation’s capital. Instead of clarifying the constitutional place of handgun regulation, the Court’s conservative bloc virtually guaranteed a generation of litigation to clarify what Justice Stevens in pointed dissent called a “law-changing decision.”
Justice Kennedy’s recent ringing denunciation of the Military Commissions Act–proposed by George W. Bush and approved by a Democratic-controlled Congress–left both parties eager to change the subject. But these late rulings, more charged symbols than legal substance, go to the heart of presidential politics since the Nixon era, attempting to define the electorate in terms of fear, vengeance and vigilantism. It is a measure of the potency of these politics that even Obama–who has asserted, at times, a refreshingly positive vision of the social contract–feels obligated to knuckle under. At the same time, the narrow 5-to-4 margin in these final rulings, and the habeas corpus case, as well as the average age of the Court’s liberal wing (76) compared with that of the conservatives (61), should remind everyone that civil rights and a sane, progressive vision of the Constitution rest on the next President’s judicial appointments.