From the WSJ Opinion Archives
You
Don't Say
"Supreme Court May Decide Several Cases"--headline, Associated Press,
June 26
O'Connor's
Fickle Constitution
By a 6-3 vote, the U.S. Supreme Court has struck down a Texas law prohibiting
"deviate sexual intercourse with another individual of the same sex"
as a violation of the constitutional right to privacy. CNN reports the decision,
Lawrence
v. Texas, also "appears to cover similar laws in 12 other states,"
some of which applied to heterosexual sex as well. Blogger Phillip
Carter speculates that this ruling may prompt a legal challenge to the sodomy
prohibition in the Uniform Code of Military Justice, which, if successful, could
effectively end the ban on open homosexuals in the armed services.
Civil laws prohibiting consensual sodomy were an anachronism, and the country is well rid of them. Yet we'd say the court got it right in Bowers v. Hardwick (1986), when it ruled that the U.S. Constitution is no bar to such laws. At the time the court decided Bowers, 24 states had sodomy laws; by yesterday only 13 did. By short-circuiting the political process, which seemed to be moving in the right direction anyway, the Supreme Court took away a little bit of Americans' democratic freedom.
At the same time, one can't really accuse the court of making up a new right out of whole cloth--at least not in this case. The court's "privacy" jurisprudence, which has no basis in the text of the constitution, goes back nearly four decades, to Griswold v. Connecticut (1965), which established a constitutional right to marital privacy (specifically, for married couples to use contraceptives). In 1973, Roe v. Wade established a right to reproductive privacy, and although the court acknowledged that "a State may properly assert important interests . . . in protecting potential life," in practice this hasn't amounted to much. The establishment of a right to sexual privacy, which is effectively what Lawrence does, seems a natural, perhaps even inevitable, progression from Griswold and Roe.
Here's something odd, though. In a 1992 case called Planned Parenthood v. Casey, the court by a 5-4 vote upheld Roe v. Wade--or actually, it upheld the outcome of Roe v. Wade, but three justices--Sandra Day O'Connor, Anthony Kennedy and David Souter--swept aside Roe's rationale and offered a new one of their own, in a decision for which all three shared authorship. Part of this rationale rested on a curious theory about the court's political authority:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown [v. Board of Education] and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.
O'Connor, Kennedy and Souter all voted with the majority today in striking down the precedent the court set 17 years ago. Kennedy wrote the decision in Lawrence, and O'Connor actually switched positions; in 1986 she voted with the majority in Bowers. (In a concurring opinion in Lawrence, she says, rather implausibly, that althogh she agrees with the result of today's case, she does "not join the Court in overturning" Bowers.)
Does this mean they don't think the issue of sodomy laws is a very important one, compared with segregation and abortion? That's a plausible position to take, but gay-rights activists are already likening today's ruling to Brown. (This is a bit overwrought, seeing as how sodomy laws were rarely enforced anyway.) Or is it only liberal rulings that have "rare precedential force"?
And in this regard, what is one to make of Monday's decision in Grutter v. Bollinger, which upheld some racial preferences in college admissions? This was certainly an attempt to settle a "divisive controversy"--and yet far from claiming a "rare precedential force," Justice O'Connor, in her majority opinion, actually suggested the ruling has a time limit: "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
So here's a summary of Justice O'Connor's constitutional views:
- Abortion may or may not have been protected by the Constitution in 1973,
but it definitely was in 1992 because the court said so 19 years earlier.
- Homosexual sodomy was not protected by the Constitution in 1986, but it
is in 2003.
- Racial preferences in college admissions are permitted by the Constitution in 2003, but the same Constitution is likely to prohibit them in 2028.
In Bush v. Gore, the case that resolved the 2000 election dispute, the court's majority opinion--unsigned but believed to have been a collaboration between O'Connor and Kennedy--disclaimed any precedential value: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Such an approach was defensible in that particular case, since the court was called on to resolve a political crisis, and speed arguably was more important than judicial craftsmanship.
But in its decisions involving privacy and race, the court has had decades to work out the legal principles involved. Whichever side of a given issue you're on, you can discern a clear philosophy behind the legal opinions of an Antonin Scalia or a Ruth Ginsburg. The same can't be said for O'Connor, for whom the Constitution is not only a living document, but an extremely fickle one.
" 'The court has taken sides in the culture war,' Scalia said, adding that he has 'nothing against homosexuals.' "--CNN.com, June 26, 2003
"We're not gay! Not that there's anything wrong with that . . ."--Jerry Seinfeld, "Seinfeld," Feb. 11 1993
Landslide Howard--II
We were there first. Back on March
17, a few days before allied tanks rolled into Iraq, we wrote: "If
we had to place a bet on who'll be the Democratic nominee, and we were getting
odds, our money would be on Howard Dean." Three months later, everyone's
noticing Dean--and they're noticing that he's a bit unhinged.
The Washington Post's Terry Neal, for example, offers this odd anecdote:
Elections analyst Stuart Rothenberg, who writes a column for "Roll Call," related an exchange that he had with Dean during a meeting with the paper's editorial board in January.
"I asked him about gay rights and civil unions and his commitment to it, about how he always talks about it as a moral principle on which he has staked his reputation and doesn't care about the political ramification," Rothenberg said. "I said, 'If that's the case and you use it as an example of why you are different, why did you sign [the civil unions] bill in cover of darkness with no public event?' I told him a Democrat from Vermont had told me that. And he turned his body halfway around as if he were reaching back to throw a fastball, and he yelled 'That's bull----! Nobody from Vermont said that. Nobody from Vermont told you that.' "
Writes Neal: "It's important for Dean to address questions about his temperament and preparedness now rather than later." Slate's William Saletan, meanwhile, looks at Dean's policy views. He pronounces himself delighted with Dean's positions on domestic policy, while saying the erstwhile Vermont governor is wanting when it comes to national security. After puzzling over what it is that bothers him, Saletan has an epiphany while watching Dean speak at the Council on Foreign Relations:
Wednesday, Dean again laced his remarks with caveats. "Increasing numbers of people in Europe, Asia, and in our own hemisphere cite America not as the strongest pillar of freedom and democracy but, somewhat unfairly, as a threat to peace," he said. Of Iraq, he added, "Although we may have won the war, we are failing to win the peace." Somewhat? May have? Why the uncertainty?
What dawned on me as I stood in the room with Dean, watching his stony expression, is that these comments don't reflect uncertainty. They reflect overconfidence. Long before the Iraq war, Dean made up his mind that it would be a failure and would rightly alarm other countries. In fact, the war was a swift success (even if the peace isn't), and foreign depictions of the United States as a bloodthirsty empire are lies. The reason Dean inserts qualifiers such as "somewhat," "may have," and "I suppose" is that he hates to concede anything. That's his story, and he's stickin' to it.
The Weekly Standard's Fred Barnes, who until recently was pooh-poohing Dean as a novelty candidate on a par with Sharptonkucinichmoseleybraun, now acknowledges that "Dean has firmly established himself as a top tier candidate for the Democratic nomination." Now, Barnes argues, is the time for the press "to scrutinize that candidate's statements, proposals, and accusations--and challenge them if necessary."
All three of these men make valid and interesting points. But we wonder if they're not missing something crucial. Sure, Dean is flaky and erratic, but that doesn't mean people won't vote for him. Remember Ross Perot? In 1992 the batty businessman dropped out of the race because, he said, the Republicans were plotting to disrupt his daughter's wedding. Then he dropped back into the race, and in November he managed to get just under 19% of the vote--the best performance by a third-party candidate in 80 years. If Dean wins the Democratic nomination, he could reasonably hope to do at least twice as well as Perot did.
It is precisely because of his "faults" that Dean has a shot at the nomination. David Brooks has the best explanation of the Dean phenomenon, albeit in an article that mentions Dean only in passing. In brief, the Democrats who make up the party's base are mad--in both senses of the word. So blinded are they by their frustration at being out of power, and by their inexplicable hatred of President Bush, that they are astonishingly detached from reality. That Dean is determinedly wrong about Iraq is, for this constituency, a selling point. They are too. As an executive of Meetup.com, which has become an online center for grassroots Dean organizing, tells Fox News: "Howard Dean has a rabid following." (Good thing he's a physician.)
None of this necessarily means Dean will win the nomination. A Gallup poll of Democrats nationwide finds him with only 6% support, with Joe Lieberman leading the pack at 20%. (This survey may underestimate Dean's support, since it includes "Democratic leaners," who are presumably less likely to vote in primaries than party activists.) And Dean polls at only 3% among blacks, a crucial Democratic constituency. (Al Sharpton is in first place with 24%.)
Even if Dean doesn't win, he is likely to hurt the prospects of whoever is the Democratic nominee. "The Democrats will either nominate someone utterly unelectable like Dean, or a more mainstream candidate like Kerry or Gephardt who is fatally wounded by the nomination process and been forced to move so far left to beat back Dean that he, too, is unelectable," predicts Bruce Bartlett in National Review Online. Little wonder that left-leaning commentators like Neal and Saletan are wary of Dean.
Leftists
for Fascism
Here's an example of what we mean by the left's detachment from reality. Robert
Scheer, a columnist for Salon and the Los Angeles Times, begins a column with
the following paragraph:
There was a time when the sickness of the political far left could best be defined by the rationale that the ends justified the means. Happily, support for revolutionary regimes claiming to advance the interests of their people through atrocious acts is now seen as an evil dead end by most on the left. Immoral and undemocratic means lead inevitably to immoral and undemocratic ends.
Would that it were true--but the rest of the column turns out to be a predictable brief against the liberation of Iraq from one of those "revolutionary regimes claiming to advance the interests of their people through atrocious acts."
Meanwhile, anti-American Columbia prof Edward Said, in a column mostly devoted to lauding terror advocate and accident victim Rachel Corrie, offers this defense of Saddam:
However else one blames Saddam Hussein as a vicious tyrant, which he was, he had provided the people of Iraq with the best infrastructure of services like water, electricity, health, and education of any Arab country. None of this is any longer in place.
Now there's a rallying cry for the 21st-century left: "At least he made the trains run on time."
Yeah,
That's the Ticket
Remember those two trailers found in Iraq that U.S. officials thought were used
to make biological weapons? The State Department's intelligence division disagrees,
the New York Times reports: "Among the alternative purposes for the trailers
that the State Department report described as plausible were that they had been
intended for the refueling of Iraqi missiles, one administration official said."
The Iraqis use trailers to refuel missiles? And we suppose they use the missiles to deliver fertilizer to farmers' fields.
Non
Sequiturs of the Times
Bob Herbert has another strange column in today's New York Times. Here's how
it begins:
The juxtaposition was perfect.
On Monday, the same day that President Bush was raking in $4 million and touting his tax cuts at a Manhattan fund-raiser, the trustees of the City University of New York met to formally approve the largest tuition hike in the school's history.
This is how it is in the United States these days, massive tax cuts for the very wealthy at the same time that the poor and working classes are being clobbered by reduced services and myriad tax increases of one kind or another.
For the students at CUNY, who have traditionally come from poorer backgrounds, a tuition hike--in this case $800 a year--is the equivalent of a tax increase. And it can be devastating.
We don't understand the connection. Herbert is complaining about federal tax cuts. CUNY's financial troubles are the result of profligate spending by the state of New York. It's not clear why taxpayers in the other 49 states should have to pay for Albany lawmakers' lack of restraint.
A Times news story, meanwhile, reports that "the 400 wealthiest taxpayers accounted for more than 1 percent of all the income in the United States in the year 2000, more than double their share just eight years earlier, according to new data from the Internal Revenue Service. But their tax burden plummeted over the period."
That's in the first paragraph. But if you read through to the sixth paragraph, you learn that it didn't "plummet" at all (come to think of it, wouldn't a plummeting burden crush whoever's carrying it?). It just grew more slowly than their income:
The top 400 reported 1.1 percent of all income earned in 2000, up from 0.5 percent in 1992. Their taxes grew at a much slower rate, from 1 percent of all taxes in 1992 to 1.6 percent in 2000, when their tax bills averaged $38.6 million each.
Hey, someone refresh our memory. Who was president during most of that 1992-2000 period in which the rich got richer and didn't pay their fair share? The Times doesn't say.
Monkeyfishing
in Britain?--II
After we noted
it yesterday, the urban-myth busters at Snopes.com got on the case of the
dubious George W. Bush description of rapper Marshall "Eminem" Mathers
as "the most dangerous threat to American children since polio." The Snopesters
list the veracity of the quote as "undetermined" but offer their opinion:
We're guessing that this was a spurious "quote" fabricated by someone for publicity purposes (nothing piques curiosity about a person more than the President's declaring him to be a dangerous enemy), or to poke fun at President Bush.
We concur. Meanwhile, we're not sure what to make of it, but this Web page attributes the quote to "McKenne M 2000," whatever that means. (The earliest known attribution to Bush is from February 2001.)
Who
Knew?
"Prostate Medication Could Help or Harm, Study Says"--headline, St.
Louis Post-Dispatch, June 25
What
Would We Do Without Health Experts?
"Health Experts: Use Common Sense to Keep Cool"--headline, Saratogian
(Saratoga Springs, N.Y.), June 25
What
Would Compulsive Gamblers Do Without Experts?
"Experts Say Many Compulsive Gamblers Turn to Crime or Suicide"--headline,
Times (Munster, Ind.), June 25
What
Would Pesky Insects Do Without Experts?
"Experts: Spring Weather Conducive for Pesky Insects to Breed"--headline,
Messenger (Fort Dodge, Iowa), June 26
The
Chair Will Keep His Hands Off the Chair
"The U.S. Senate Rules Committee moved closer on Tuesday to issuing this
warning to lawmakers: Do not remove from the U.S. Capitol furniture, paintings
and other historic items," Reuters reports. " 'We are not supposed
to steal from the Capitol,' Sen. Don Nickles, an Oklahoma Republican, said wryly
after the panel sent the proposed rule to the full Senate for consideration."
Hillary's been a senator for 2 1/2 years, and they're just now getting around to this?
They
Should Have Been Expecting a Lawsuit
Cynthia Papageorge is suing her former employer, which allegedly fired her for
being pregnant, the Boston Globe reports:
"We had a surprise visit from a new vice president," said Papageorge, 43, who was in charge of the company's high-end stores in Massachusetts, Connecticut, and Rhode Island. "When he saw me he had almost a look of horror. I had gained 38 pounds and was wearing white leather Keds because my feet were swollen. I thought I looked presentable. He said I wasn't able to handle my position, "in my state."
And who is the defendant in the case? Mothers Work Inc., which owns three chains of stores selling maternity clothing.
From
Hans Blix's Homeland
"A Swedish police officer convicted of assaulting a motorist, reckless
driving and handcuffing a man he thought was drunk but was actually suffering
a stroke, has returned to the force," the Associated Press reports. The
cop, whose name wasn't released "in line with Swedish privacy rules,"
had not "grossly neglected his commitments to his employer," Per Sandell
of the Swedish police disciplinary board tells the AP. "He added that just
because the policeman had been sentenced for several different crimes, it wasn't
enough to merit his dismissal."
Economic
Stimulus
"Almost all euro bank notes have traces of cocaine, according to a study
by German scientists," reports London's Daily Telegraph. The scientists
measured the notes in January 2002 and again in August. "Three per cent
were found to be contaminated with an average of 0.4 microgrammes of cocaine
particles, just days after the euro's launch, and this figure soared to 90 per
cent in seven months."
That explains why the dollar has been losing value against the euro. It's not that the dollar is low; it's that the euro is high.
(Elizabeth Crowley helps compile Best of the Web Today. Thanks to Jessica Towhey, Linda Cooke, Michael Kingsley, Todd Eberle, Daniel Goldstein, Barak Moore, Gadi Niram, Robert LeChevalier, David Darby, Randal Voges, C.E. Dobkin, Joel Goldberg, Edward Schulze, Nathan Dewey, Steven Platzer, Thomas Linehan, Michael Moynihan, Jim Eliason, Jay Piccirillo, Ben Anderson, Mara Gold, Abe Beyda, O.M. Alves, Natalie Cohen, Josh Yuter, Raghu Desikan and Yehuda Hilewitz. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)
Today on OpinionJournal:
- William McGurn: An American woman is free at last. But her kids are still Saudi prisoners.
- John Fund: The California jurist who may replace Justice O'Connor.
- Barbara Phillips: Spike Lee's lawsuit deserves to get spiked.
