Feature

High Court Nonsense

By From the December 1984 issue

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Even before the Supreme Court ended its last term in early July, media pundits had reached a verdict on its significance: The Court had lurched to the right. As usual, Anthony Lewis of the New York Times gave the charge its most strident formulation. The "stunned reaction among the public as well as legal specialists," he wrote, reflected "the sense that our fundamental assumptions about the Supreme Court must change… The Court made clear that it was no longer prepared…to set the limits on state power."

In a way, such anguish is perfectly understandable. Contemporary liberals, like Mr. Lewis, may be eager to speak for "the public," but when the public and its elected representatives are so obstinate as to take a different view, liberals have cheerfully resorted to the courts to get their way. And on the whole over the last two decades, they have gotten their way in the courts. True to form, the Supreme Court rejected the arguments of the Reagan Justice Department in every major case in which it advocated a conservative position during the first three years of this administration. Suddenly this term, the Court found merit in Reagan Administration positions in a considerable string of cases, while simultaneously rejecting the usual appeals from the ACLU, the NAACP, and other avenging angels of the liberal establishment. No wonder Anthony Lewis was "stunned."

Still, all the handwringing over the Court's recent performance was a rather petulant and ungrateful response to such a long-time benefactor. All the more so, as the Court really did not travel far at all this term from the strange world-view of contemporary liberalism. The truth is that, if the Court has started to retreat from some of its earlier activist positions, it has done so by hobbling backward, with its face still firmly fixed to the left. Recent cases offer very little evidence that the Court is really prepared to cast off its traditional dependents and no sign that it really is interested in developing new conservative constituencies. Judicial power remains a weapon almost exclusively available to the left, even if it is becoming a less reliable weapon than it once was.

To begin with, there was a very large (and altogether predictable) measure of selectivity in the wailing about the Court's unleashing of "state power" from constitutional restraints. At the end of May, a unanimous Court blithely endorsed a Hawaii statute allowing the state to confiscate land from large private landowners and transfer it to private homeowners. The Fifth Amendment prohibition on the taking of "private property… for public use, without just compensation" has always been understood to limit governmental "takings" to actual public uses. Seeing no credible "public use" involved in Hawaii's forced transfer of land titles between private owners, a lower federal court had declared the state scheme unconstitutional. But the Supreme Court insisted courts must defer to any "legislative determination that the taking will serve a public use"; in other words, a legitimate "public use" is whatever a government says it is. This remarkably complacent view of state power evoked no word of protest from Anthony Lewis or the ACLU, however. When it comes to private economic activity, the Court has not presumed to "set the limits on state power" (in Mr. Lewis's phrase) since the early New Deal. And neither contemporary liberalism nor our ostensibly "conservative" current Court shows any signs of wishing to see our constitutional limitations in this area taken seriously ever again.

But it is not just in regard to economic intervention that the current Court remains in accord with contemporary liberalism in welcoming an expansion of state power. Early in July a unanimous Supreme Court, again overturning a contrary lower court ruling, upheld Minnesota's effort to force the Jaycees to admit women. Again there was no protest from the ACLU or the New York Times. The Court itself acknowledged that "members of the Jaycees regularly engage in a variety of civic, charitable, lobbying, fundraising and other activities worthy of constitutional protection under the First Amendment" but concluded that Minnesota's demand for the group's sexual integration "requires no change in the Jaycees' creed of promoting the interests of young men."

Only two years ago the Court ruled that election officials could not force the "Socialist Workers party to divulge even the names of its members, as this might have a "chilling effect" on their "freedom of association." Can the Court really believe that forcing a group to reveal its membership is distinctly more "chilling" than forcing the group to accept members it does not want? But, of course, the Court does not believe this. It would not, for example, hold to this bizarre claim for a minute if the state of Illinois tried to force Louis Farrakhan to accept whites into his black separatist organization. The Court simply believes that Communists -- and their various soul-mates in political extremism, such as the Nazis in Skokie -- should have more First Amendment protection than those who believe in some differentiation between men and women.

The key to much of the Court's jurisprudence can, in fact, be found in its explanation of the surpassing evil in sex discrimination. Sex discrimination, the Court tells us in the Jaycees decision, "forces individuals to labor under stereotypical notions that often bear no relationship to their actual abilities" and "thereby deprives persons of their individual dignity and deprives society of the benefits of wide participation in political, economic and cultural life [emphasis added]." And such "stigmatizing injury" is "surely felt as strongly by persons suffering discrimination on the basis of sex as by those treated differently because of their race." This is surely raising the stakes pretty high. If "stereotypical notions" about sex roles are as injurious as racialist dogmas -- which have been associated with so many bloody and terrible crimes against black Americans in the past -- then our society must still be quite steeped in malice and menace for more than half its members. Conversely, if government must assure "dignity" and "wide participation" for al! "persons" in such a forbidding social environment, then government must have very broad powers indeed -- over property, over private organizations, over personal liberty. Such reasoning is central to the modern judicial Outlook: Ensuring a satisfying social environment must take precedence over the rights of individuals, as traditionally conceived.

Given the dominant currents in national politics over the last fifty years, it was doubtless inevitable that the Court would find more and more room in the Constitution to accommodate the aspirations of activist government. But rather than a grudging retreat from its traditional watch over personal rights (protecting each individual's own liberty and property), the Court enthusiastically embraced the perspective of activist government and frequently, over the last twenty years, has sought to lend a hand in the effort to remodel society. In a great range of cases, therefore, the Court's perspective has shifted away from the immediate rights of individuals to broad group claims for an improved social environment. Surely the most dramatic reflection of this altered perspective has been the Court's bizarre experiments with school busing over the past fifteen years, where large numbers of current students are transported all over town, ostensibly to "remedy" an injury to an entirely different group of students decades earlier. Even in retreat from its more activist exertions in the past, however, the Court often continues to embrace this perspective.

Take the Rhode Island crèche case, decided last March. To the surprise of many observers, the Court held that a Christmas nativity scene, erected with municipal funds on municipal land by the city of Pawtucket, did not violate the ban on "establishment of religion" in the First Amendment. The decision was one of those "conservative victories" that provoked bitter condemnation from liberal commentators and angry dissents from four justices on the Court itself. Yet no one for a moment believes that mere display of the crèche forced anyone to join a church he did not accept or even forced anyone to pay for an unwanted "official" church. (The public expenditure involved was too minimal to affect anyone's tax burden.) The charge boiled down to the claim that non-Christians or non-believers might be offended ("alienated," in Justice Brennan's term) by such an apparent public endorsement of a Christian faith -- and the First Amendment somehow gave them a right never to be so offended. But the Court's majority, speaking through Chief Justice Burger, did not comment on the evident absurdity of a "right" to a secular public environment. On the contrary, it upheld the Constitutionality of the crèche by classifying it not as an actual religious symbol but as a mere festive ornament for holiday shoppers. It left the clear implication that a more thoroughly sectarian display by the city might indeed violate the "rights" of offended passers-by. Politicians who invoke divine blessings in their public speeches would be well advised, it seems, also to offer Some tokens insincerity to avoid violating the "rights" of atheists -- or at least to avoid threatening their "dignity" and inhibiting their "wide participation."

Similarly, the Court was much criticized by liberal commentators for several decisions last term that backed away from strict enforcement of the exclusionary rule -- the rule that requires criminal convictions to be set aside if evidence at the trial was illegally obtained. It was only some two decades ago that the Court first discovered this rule to be required by the "due process" clause of the Fourteenth Amendment. And then its argument for the rule was not that it was essential to assuring a fair trial but that it would be helpful in deterring illegal searches by police. The Court majority defended its recent decisions, carving exceptions into the exclusionary rule, on the ground that in these special circumstances (where police could not know they were acting illegally) application of the rule would have no real deterrent value. But the majority did not ask itself why it had any business grafting a general police reform measure -- whether effective or not -- onto fair trial criteria in the first place.

Even where the Court did attempt to reassert a traditional perspective on individual rights in its last term, it did so with notable tentativeness. In the Memphis firefighters case, for example, it properly overturned a lower court order, which had required the city to lay off white firefighters ahead of blacks with less seniority. The lower court had issued this Order to preserve the gains in black employment from a hiring quota previously accepted by the fire department. But the Supreme Court insisted that only actual, individual victims of discrimination, not simply people of the same race, could be exempted from (contractually established) seniority criteria in administering layoffs. Justice Department officials who hailed this decision as the death knell of affirmative action were certainly premature, however. The Court based its decision on an explicit provision regarding seniority in Title VII of the 1964 Civil Rights Act, rather than any broader constitutional principle. The Court did not even criticize or comment on the initial hiring quotas (which the district court's order was designed to protect), much less overrule the large number of past decisions endorsing open-ended race-based "remedies."

Ironically, the dissenters in this case, as in several others, still criticized the majority for "reaching" to pronounce on issues that need not have been decided. Not content with stating this complaint in his dissents, Justice John Paul Stevens aired it in a public address in mid-August. By then his cry had been taken up by a whole supporting chorus of indignant liberal critics (with Anthony Lewis again in the vanguard). It was, to say the least, a rather impudent complaint, given how many activist judicial opinions of recent years could not, by traditional criteria, have gotten into court in the first place -- abstracting, as they did, from the particular rights of any particular individual.

Last year's Bob Jones decision marked a fantastic culmination in this pattern. No black students at (or applicants to) Bob Jones University had complained about its ban on interracial dating. Even the government, under the Reagan Administration, agreed that Bob Jones was legally entitled to a tax exemption, despite this repellent policy. So the Supreme Court, on its own initiative, appointed a Washington lawyer, entirely unconnected with the case beforehand, to argue an opposing view--which the Court then proceeded to declare the correct view of the law, ordering the government to eliminate the tax exempt status of Bob Jones University, against the wishes of both the actual parties to the "case." Needless to say, there were no complaints from Justice Stevens or Mr. Lewis about this "reaching" for a decision, where there was not even disagreement between the parties.

On the other hand, the Court this term refused to allow standing to a group of "black parents" demanding that the IRS impose affirmative action requirements on private schools throughout the nation. Justice Stevens and the New York Times were among the loudest protesters, insisting the "injury" suffered by millions of black parents from IRS passivity was surely enough to justify a lawsuit (even if none of the parents in this suit had children in private schools). What all the huffing about jurisdictional manipulation comes down to, then, is that liberals have come to regard procedural technicalities, like the Court's substantive policy-making, as properly reserved for the advancement and protection of "progressive" opinion only. But the narrow "conservative" majority on the Court is only beginning to break free of this spell.

In fairness, however, one must acknowledge that the Court faces very powerful resistance to any sharp break with recent patterns, as the response to its minor deviations of the past year suggests. The Court has been sustained for twenty years in its activist improvisations by a powerful brace of champions in Congress and the national media, With or without the Court's help, these partisans are quite skillful in identifying their political agenda with a transcendent vision of justice.

The Grove City case, for example, decided last February, must have been a powerful lesson to the Court on how dangerous it is to buck that vision, even modestly. Grove City College, one of a handful of private colleges that have steadfastly refused to partake of federal education subsidies, insisted that it could not be required to comply with a 1972 law prohibiting sex discrimination in "any education program or activity receiving federal financial assistance." The Court endorsed the Justice Department's claim that so long as some student at the college received federal student loan funds, Grove City's entire scholarship program must be considered a "recipient" of federal assistance, subject to the regulations on sex discrimination. But a majority also agreed with the Justice Department that all operations of the college as a whole could not fairly be considered a "program or activity receiving federal assistance" and the rest of the college could therefore be exempt from the regulations.

Feminist groups furiously denounced the Court's decision and within three months liberal Democrats in the House of Representatives had whipped through a bill imposing the full panoply of "nondiscrimination" requirements on all aspects of any institution receiving even small, indirect federal assistance. This was an extreme response, especially given the extreme interpretation of "sex discrimination" adopted by the regulations -- which seem to require, for example, that schools provide abortion services if they provide any other health facilities. No female student at (or applicant to) Grove City College had ever complained of sex discrimination there. Yet to satisfy feminist demands for a pure society, Congress was prepared to say that, if a young woman (or man) chooses to attend a school with some separate activities for men and women, she (or he) must be punished with denial of federal student loans. Very few conservatives in Congress dared to speak out for a narrower approach.

Hard as it may be, though, the Court has an obligation to resist this trend toward "social rights," legal claims to a satisfying environment or a reassuring atmosphere. It is not merely a burden on liberty and diversity. Sometimes it can be quite sinister in its implications, as the Court itself illustrated in its decisions last year on abortion rights. Ten years ago, when the Court first discovered a right to abortion in the Constitution, its reasoning was based on a presumptuous non sequitur, but one which at least paid verbal respect to the moral qualms of abortion opponents. There is no agreement on when "life" begins in fetal development, the Court held in Roe v. Wade, and therefore (!?!) the state may not prevent the mother from terminating this possible life until the last stages of pregnancy. Plainly exasperated that this Solomonic decision failed to end charged public debate on the morality of abortion, the Court last year lashed out at a series of minor restrictions on access to abortion. In the Akron case, the Court even found unconstitutional a municipal ordinance requiring doctors to wait one day before performing a requested abortion. Plainly what the Court objected to in this ordinance was its implication that abortion is an act of great moral gravity, not to be undertaken lightly. The Court has never hinted at any constitutional difficulty with comparable state-imposed waiting periods before couples may marry or divorce (or unions may strike). But in the case of abortion, even a one day pause for reflection between the impulse and the act was too much for the Court. It might promote an uncomfortable atmosphere.

Indeed, in the same term the Court itself followed out the grim logic of this insistence on a state posture of rigid moral indifference toward the "right to life." Two years ago, a new-born infant in Indiana was allowed to starve to death when his parents refused to authorize a minor surgical procedure to save him. Hospital officials sought a court order to save him but the state courts rejected all appeals, even the very minimal plea that the court appoint an official legal advocate for the baby. And the Supreme Court rejected the effort to bring this case before it. In the recent past, it has found that the Constitution requires a due process hearing before an unruly student can be suspended from school or an infraction-prone driver can have his license revoked. But the Court could not find room in its schedule even to consider whether a malformed infant had a right to a fair hearing before being starved to death. Perhaps the Court had other reasons, but it is hard to avoid the suspicion that it did not want this terrible case to receive more publicity lest it strengthen the claim of "right-to-life" groups that moral indifference to abortion would soon lead to moral indifference to infanticide. That might create an uncomfortable atmosphere.

Once again, it must be said, a large portion of liberal political activists support and demand this strange set of priorities. Judging from its reactions to the Grove City case, on the one hand, and the regulations and subsequent legislation to protect handicapped infants, on the other, the New York Times does indeed seem to regard federal power as more appropriately extended (and far more urgently needed) to prevent women's athletic teams from being underfunded than handicapped infants from being starved to death. Perhaps they are jumping to wild conclusions, those right-to-life advocates who warn that enthusiasm for a planned society inevitably leans toward experimentation with eugenics and euthanasia, towards ridding society of the unplanned, undesirables. But surely there would be less resort to such wild speculation if the Supreme Court provided more assurance that fundamentals will always be safeguarded. There is a reason why the Constitution contains guarantees of life, liberty, and property -- and none for a satisfying or comfortable social environment.

The latest term of the Supreme Court does not offer much ground for hope that the Court has come back to fundamentals. It does suggest that it will require more than a few new appointments to the Court in the next few years to bring it around.


Jeremy Rabkin is assistant professor of government at Cornell University. This article inaugurates an American Spectator department on constitutional issues, to feature Mr. Rabkin and William Kristol of Harvard's Kennedy School.

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About the Author

Jeremy Rabkin is professor of law at George Mason University School of Law and the author of Law without Nations? (Princeton University Press), The Case for Sovereignty (AEI Press), and Why Sovereignty Matters (AEI Press).