The word, then, is no Supreme Court retirements expected this year. Pity. We could lose up to six justices — say, the majority in the Lawrence vs. Texas sodomy case — and feel indisposed for less than a week-long street dance, complete with door prizes and keg beer.
On the other hand, we’d have to be careful. The retirements of Sandra Day O’Connor, Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, and — oh, endless bliss! — David Souter might give us the wrong idea. We might suppose the high court was ready for some overdue straightening out: no more lofty legislating, no more attempts to impose on the country as a whole the viewpoints of liberal pressure groups. Six more justices in the estimable mold of Nino Scalia and Clarence Thomas, and … and … !
And nothing, would be my bet. That is because, pending the Second Coming, our nation seems incapable of dismantling government by judiciary, the sort of government under which we now labor.
The Republicans can’t do it — it’s too hard. The Democrats don’t want to — they’re having too much fun.
Consider first the Republicans. Of the six justices who rebuked Texas’ ingrained preference for the heterosexual lifestyle, four were named to the high court by Republican presidents. A maxim of Supreme Court history is that justices change while on the bench; Republican appointees, following a tradition going back at least to Earl Warren, seem to waver more than most in their presumed commitment to popular government.
O’Connor and Kennedy were Ronald Reagan appointees; that didn’t stop O’Connor last week from affirming affirmative action or both from disallowing state concern for traditional moral arrangements. If Souter, appointed by the first President Bush, ever had a conservative gene, it must at some point have been surgically removed. Stevens, a Gerald Ford appointee, may be the court’s most liberal member. (A Nixon appointee, the late Harry Blackmun, formerly occupied that post.)
Are Republican judicial minds more porous than Democratic minds? Whatever the case, the presence on the bench of solid jurists like Scalia, Thomas and Chief Justice William Rehnquist reminds us that sometimes even Republicans get lucky.
Democrats positively love an interventionist judiciary, because think how much time you save by striking down, say, the abortion laws of 50 states with just one blow. Without federal judges, you might have to ask the people of the states whether or not they wanted to change their laws. A ruling from the Supreme Court can go through those laws like a buzz saw. We witnessed it happen to the right of the states to register, concerning sodomy, a viewpoint other than the Supreme Court’s and that of the gay rights lobby.
This is how the liberal pressure groups that make up the Democratic Party like things and propose keeping them. The furor that Democrats have stirred up over Senate confirmation of particular conservatives appointed to appeals courts is meant as a warning to the incumbent President Bush: No more “divisive” conservative nominees, buddy, least of all to the Supreme Court. No Scalias, no Thomases. Ah, but a Souter — a “moderate,” a “progressive,” a friend of affirmative action and foe of traditional morality. That would be the ticket, you betcha. No Democratic filibuster would hold up such a nomination.
Doubtless the early retirement of the Lawrence Six would be thrice welcome. In the end, nevertheless, how much difference would it make? The political and media establishments are continuously engaged in showing us how cranky and unreasonable are those who deny the imperial nature of the Supreme Court’s present mission. New York Times columnist Maureen Dowd’s sarcastic attack on Scalia as a cultural Stegosaurus typifies the method: Ridicule the dinosaurs; show them out of step with society’s quest to break down stale old ideas, supplanting them with wonderful new ideas — enforcement courtesy of the Supreme Court.
Such are the rules by which we play today and under which we get stuck with judicial stinkers like Lawrence vs. Texas.