The Right Coast
May 22, 2004
Justice O'Connor As National Conciliator
By Maimon Schwarzschild
Excellent piece in "First Things" by our San Diego colleague Steven Smith. He says the Supreme Court's liberals and "centrists" may see themselves as trying to create national compromise and conciliation in cases like Lawrence v Texas (striking down the Texas sodomy laws), Romer v Evans (striking down the Colorado ban on affirmative action for gays); even in Roe v Wade. (That is the charitable view. The uncharitable view is that the Justices are abusing their positions to take sides in the culture wars.) The trouble is that the quasi-"legal" criterion the Justices often claim to be using is that laws motivated by "animus" or "hatred" are unconstitutional. And when Supreme Court decisions blithely accuse the people of Texas of being "haters" for enacting a ban on homosexual sex, or the people of a county in Colorado for forbidding preferential treatment for gays (or for that matter when the Justices intimate that opponents of abortion are "haters" too), of course it doesn't promote anything like "national reconciliation". On the contrary, it promotes demonizing your political opponents and people who disagree with you. There's already no shortage of that in today's politics, without the Justices adding fuel to it -- all the while claiming sanctimoniously to be angels of reconciliation.
Read the whole thing, as we say.