Redefining the Center

Liberal Decisions From a Conservative Court

Popular wisdom—especially among lawyers—portrays the court as a heroic voice in the wildness coming to the rescue of an abandoned and beleaguered racial minority.

However, as University of Texas professor Lucas A. Powe Jr. argues in The Warren Court and American Politics, that court is best understood as implementing the perceived political values of a national majority against parochial localities. By 1954, after all, Harry Truman had first integrated the armed forces and, more to the point, successfully won re-election even as many white Southerners bolted the Democratic Party over the issue of civil rights. The new Republican administration of Dwight Eisenhower had joined the Truman administration in calling for the overruling of the 1896 decision, Plessy v. Ferguson, that had legitimized the so-called "separate but equal" standard. Government briefs emphasized the fact that the United States was being relentlessly hammered in Cold War polemics because of segregation in the South. African Americans were increasingly an important part of national, even if not Southern, politics. Most of the nation believed that it was time for the South to recognize that the Civil War had been lost and that its black citizens were entitled to fair treatment.

Brown, in fact, was relatively unimportant in changing the South. Far more significant was the rise of the civil rights movement and the passage and enforcement of the Civil Rights Act of 1964, which, by definition, required the strong support of both the House and Senate—which had to break a Southern filibuster—and the president. The Warren Court, then, is best perceived as an active part of a majority coalition that joined in support of a New Frontier and a Great Society. The fact that the Warren Court justices—nominated largely by Democratic presidents and confirmed almost exclusively by Democratic Senates—reflected the core political values of what was then the dominant majority is scarcely surprising. Long rule by a single party entails the partisan entrenchment of its adherents in all governmental institutions, most definitely including the judiciary.

Illustration by Hugh Syme
Illustration by Hugh Syme

Details

Sanford Levinson teaches at the University of Texas at Austin Law School. The co-editor of a leading casebook in constitutional law and co-author of The American Supreme Court, he has also written Constitutional Faith and Wrestling With Diversity (forthcoming, fall 2003). He was visiting professor at the NYU Law School in 1999-2000.


The Supreme Court's Big Week

Sanford Levinson on the Conservative Court's Liberal Decisions

Laura Conaway on Same-Sex Marriage

Richard Goldstein on the Sodomy Ruling. Plus: Attention, Sodomites!

Lani Guinier on Affirmative Action

3. Moving Toward the Present

The hegemony of the Democratic Party at the presidential level ended in 1968, though it took until 1980 for its collapse to be registered in the Senate and until 1994 for the Republicans to gain control of the House of Representatives. In any event, seven of the nine current justices owe their appointments to Republican presidents Ford, Reagan, and George H.W. Bush. The court, not surprisingly, took on a decidedly different tone, especially in cases involving congressional power and the rights of criminal defendants. (The Warren Court had gone out on something of a limb with regard to the latter, genuinely unpopular, group; suspected—and even more so, convicted—criminals found themselves sawed off the limb in subsequent years.)

So what might explain last week's spate of "liberal" decisions? They are best understood in terms of how the court—and especially Justice O'Connor—perceives the current American center of gravity on such matters. With regard to affirmative action, the court—which is, after all, only permitting affirmative action rather than requiring it—is basically vindicating a national majority, especially among elites, that accepts relatively "soft" and opaque affirmative action—but not "quotas" or the use of ham-fisted point systems that are too transparent in the weight given to race or ethnicity. (And if local majorities, as has happened in California or Washington, ban affirmative action completely, that will clearly raise no constitutional problems.) Two crucial briefs were submitted in the Michigan law school case, one by 65 major American corporations, the other by a plethora of military leaders. Both testified to the importance of affirmative action in providing businesses and the military with minority executives and officers. One can be certain that most of the corporate CEOs and retired military officers who signed the briefs are Republicans, and that is just the point.

With regard to the second issue, gay and lesbian rights, the court realizes that 2003 is already far distant from 1986, when the court in Bowers v. Hardwick upheld Georgia's anti-sodomy law. The homophobia exemplified by such statutes is increasingly disdained by most Americans. (In his dissent, Clarence Thomas indicated that he would vote against such laws were he a legislator.) In 1986, after all, 24 states had anti-sodomy laws. By now the number is down to 13, and enforcement is rare. Even the 13, including Texas, are more complicated than one might think. Austin, the state's capital, several times elected a gay representative to the state legislature, and its elected sheriff is lesbian.

So the Lawrence sodomy decision fits the Warren Court model of actively protecting the rights of a minority once it has demonstrated it is not generally reviled, but is well on its way to general acceptance and integration. After all, the lesbian daughter of the vice president of the United States is herself a member of the Bush administration. It is no coincidence, moreover, that Justice Kennedy cited criticisms of Bowers by libertarian Republicans Charles Fried, Ronald Reagan's solicitor general, and Judge Richard Posner of the Seventh Circuit Court of Appeals.

In a recent book, New Constitutional Order, Georgetown professor of law Mark Tushnet argues that the contemporary Supreme Court, observing the political gridlock caused by divided government, has a fair amount of freedom to make its own guesses as to how far it can go in imposing its own favored political visions. For the conservative majority, this has included reining in federal programs passed by Democratic Congresses and, therefore, presumably put in doubt by the electoral sea change of 1994 and, for that matter, Bill Clinton's repudiation of the era of "big government." There has been nothing restrained about the Rehnquist Court, but it would be as much of a mistake to view its members as isolated conservatives as it was to view the Warren Court as isolated liberals. Courts are always reflecting the general temper of their times.

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