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A Depressing Week at the Supreme Court
First, the Supremes affirm affirmative action. Then, they strike down sodomy laws. In the affirmative action case, they enshrine unequal treatment of individuals as the law of the land. If anything, then, the US is more firmly down the road of ethnic separatism and capricious government than it was before the decision. And in the Texas sodomy case, the Court has seen fit, once again, to usurp the democratic process.
In its lead editorial today, the Wall Street Journal called this "A Roe v. Wade for Gay Rights." And they're right, of course. Both cases involve fundamental questions of morality, religion, and the role of the state. Both deal with highly contentious issues. In both areas of law (abortion and laws aimed against homosexual conduct), the country was already far down the road of liberalizing policy through the democratic process. Both cases involve social engineering. Finally, both cases stand rooted in the "right to privacy" doctrine not enunciated as a constitutional principle until Griswold v. Connecticut in 1956.
In its editorial, the Journal saysIn his dissent, Justice Clarence Thomas calls the Texas anti-sodomy law "silly" and says he would vote to repeal it if he were a Texas legislator, as we would too.
Meanwhile, the folks over at Powelineblog call the Texas decision Amazing Disgrace for overturning long-held natural law understandings of homosexuality. Many libertarians, of course, are delighted to have one less "judgemental" law on the books.
(permalink)
The nine Justices are not legislators, however, and in deciding Lawrence they have once more usurped the electorate's right to find its own consensus on matters of social mores. The Court's opinion suggests that as those mores change the Justices have the power to reinvent the Constitution's privacy right along with it.
But why should nine--or six--Justices accrete this power to themselves? Such highly charged issues are better addressed by legislatures representing voters than by judicial edict. The genius of democracy is that it has the ability through debate to achieve consensus and settle these disputes over time.
The High Court's interventions only keep the cultural wars going.
"Justice Louis D. Brandeis'?s metaphor of the states as "laboratories" for policy experiments ... had almost nothing to do with federalism and everything to do with his commitment to scientific socialism. .... To this day, it continues to inhibit a truly experimental, federalist politics." -- Michael S. Greve
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