July 3, 2003
For the last week we have been reminded by
various pundits that the justices of the U.S. Supreme Court are
unpredictable, often surprising the presidents who
appointed them. It would be more accurate to put it more narrowly:
justices appointed by Republican presidents often issue the most liberal
Think of Earl Warren and William
Brennan (Eisenhower picks); Harry Blackmun (Nixon); John Paul Stevens
(Ford); Sandra Day OConnor and Anthony Kennedy (Reagan); and
David Souter (the first Bush). Felix Frankfurter, chosen by Franklin
Roosevelt, was the last justice named by a Democrat who turned out to be
less liberal than expected.
What gets into these people?
Who knows? But they have a strong incentive to move leftward once they
get on the bench: glory. The more sweepingly liberal the ruling, the more
surely the press will hail it as a historic or
landmark decision words seldom if ever applied to
conservative rulings. The Republican appointee who racks up enough of
these historic rulings can be assured of flattering profiles
in the New York Times and the Washington
Post, cooing that he (or she) has grown in the
office, abandoned ideology (translation: adopted
liberalism), and surprised friend and foe alike (translation:
These encomia are to justices
what rave reviews are to an actor. They go to the head. They also serve
notice to other Republican appointees that the way to get flattering
headlines is to disappoint and outrage conservatives.
Besides, liberals love it when
supposed conservatives do their work for them. In 1973 the Courts
liberals, particularly William Brennan and William O. Douglas, realized
that they would take less heat if Harry Blackmun, recently named to the
Court by Richard Nixon, wrote the majority opinion striking down the
abortion laws of all 50 states. So Blackmun served as their willing stooge
and reaped praise in the big liberal media for the rest of his life.
OConnor, Kennedy, and Souter are now the Courts
three Republican stooges. Souter is so liberal he hardly counts anymore,
but the press still calls OConnor and Kennedy
moderates, preserving their cover. All three of them came
through for the liberals last week. OConnor and Kennedy wrote the
majority opinions in the affirmative action and sodomy cases.
To them the glory goes for this
weeks Times headline gloating that in the
just-completed term, Court Remakes Law. Now
remaking the law isnt actually part of the
Courts job description; the Constitution seems to assume that the
Court will merely expound the law and abide by it. But Court Sticks
to Law would be a dull headline. Definitely not front-page stuff.
For liberals, the Constitution as
written is boring old music. They want the Court to play ingenious new
variations on it, jazzing it up with penumbras and emanations until it
sounds like a totally different work, one they can really dig.
In the sodomy case, Kennedy and
OConnor proved themselves virtuosos of the non sequitur. They
agreed that sodomy laws discriminate against homosexuals
as a class or group. Kennedy, ever the
metaphysician, added that such laws demean their
But of course the law in question
said nothing about classes or groups; it merely forbade specific sexual
acts. You might as well say that laws against theft
discriminate against burglars as a class (or should we say
demean the existence of the larcenous community?). By
Kennedys logic, laws forbidding the sodomizing of children
discriminate against pedophiles as a class. Where do you draw the line?
You cant. Kennedys
and OConnors style of thinking makes it impossible to draw
any lines except arbitrary ones. They are engaged in what might be called
jurisprudence sans frontieres. Its not the rule of law;
its empty verbal improvisation.
Substitute pedophilia for
sodomy, and the Kennedy-OConnor arguments could have
served just as well to declare pedophilia laws unconstitutional. In fact
such laws could have been condemned for adding another dimension of
Such nebulous free-association
reasoning can lead anywhere, depending on the personal preferences of the
justices. I was about to say that Id hate to live in a country where
the law could mean whatever its rulers said it meant, when it occurred to
me that I already do.