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 necessary.”
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 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 consents.
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 chair 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.