Two Supreme justices with differing jurisprudential preferences make the same cardinal error. It is worth pointing out that this bothersome disposition, if applied to the justices themselves, would make them out to be dishonest or hateful, neither of which is accurate or conducive to civil debate.


Crowd reacts to the Supreme Court’s DOMA and Prop 8 decisions (Charles Dharapak/Associated Press)

Much has already been made of Justice Anthony M. Kennedy’s assertion in the DOMA case about the authors of DOMA (presumably Democratic President Bill Clinton, who signed it, as well). He wrote: “The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute.”

There are three problems with it. First, virtually of the passages of legislative history he cites do not support that characterization. At best he located a single phrase in a House report (“The House concluded that DOMA expresses ‘both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality’”), hardly the basis for impugning the motive of every congressman, senator and the president.

Second, it is entirely gratuitous. The law could have been struck down on the 10th Amendment or relying on other aspects of due process (e.g. the proffered reason doesn’t qualify as a “compelling” reason).

Third, it poisons the public debate. As Peter Wehner put it, “We often deny to those with whom we disagree any benefit of the doubt, since we assume they see facts, events and justice just as we do. This makes their differing conclusions from us very nearly impossible to comprehend–and in turn makes it easy to characterize one’s opponents as pernicious.” It is especially inappropriate for the Supreme Court, which serves as a model of reasoned debate, to encourage this nasty tendency.

But Kennedy is not alone. Justice Stephen Breyer in oral argument for the Voting Rights Act case accused entire states of being infected with racism. He declared: “So the closest analogy I could think of is imagine a State has a plant disease and in 1965 you can recognize the presence of that disease, which is hard to find, by a certain kind of surface movement or plant growing up. Now, it’s evolved. So by now, when we use that same formula, all we’re doing is picking out that State. But we know one thing: The disease is still there in the State.”

Really? What evidence does he have for his assertion of latent racism in only a handful of states? As Chief Justice John Roberts pointed out, Mississippi, according to census data, has the highest African American voter turnout percentage in the country, higher than its white voters. While liberals hotly denied his assertion that Massachusetts turnout rate was the lowest, but, in fact, in 2008 other analysts found: “After discounting for the higher non-citizen African American population in states such as New York and Florida, there is less interstate variation. Massachusetts has the lowest African-American citizen registered voter rate — 54.2%.”

In 2013, we know, “The turnout rate of black voters surpassed the rate for whites for the first time on record in 2012, as more black voters went to the polls than in 2008 and fewer whites did, according to a Census Bureau report. . . . Among the states where blacks had the highest turnout rates relative to whites were Republican bastions where neither campaign devoted many resources, like Mississippi, Alabama, Tennessee and Kentucky.”

Isn’t it, you know, possible than in 50 years racial animus has withered in those states subject to pre-clearance so they are no more or less racist than the rest of the country?

Consider this perspective from Abigail Thernstrom, a long time civil rights activist and scholar:

In 2012, no state in the Union had a total voter turnout rate, for whites or minorities, under 50%—a figure that was the heart of the old formula. The turnout in the six states covered entirely by Section 5 was well above the national average. Mississippi, once the worst of the Jim Crow states, had the highest total turnout rate in the nation. . . .

As for the coverage formula of Section 4—which was originally only supposed to last five years—the justice made clear that even if it could no longer be justified, it should never be forgotten. In 1965, Southern blacks were still in political chains, and the hold of whites on political power made all other forms of racial subjugation possible. It was part of a law that was an indispensable, beautifully designed and effective response to a profound moral wrong—Southern black disfranchisement that persisted 96 years after passage of the 15th Amendment.

Justice Roberts’s opinion for the court is a celebration of the Voting Rights Act—and of a nation that made it work and outgrew its most-radical provisions.

That assertion does not impugn or ascribe motives. It draws on facts and outcomes to reach conclusions about American society. At some point, the 21st century grievance industry must recognize reality: Its raison d’etre is no longer applicable. (Really, how many “women in film” awards must they give out when the ranks of producers, directors, writers and studio execs are stocked with competent and highly compensated women?)

Imagine, now, if Justice Antonin Scalia asserted that his liberal colleagues who cling to the constitutionally unsound Roe v. Wade were guilty of hating unborn children. Try to envision the reaction if he claimed justices who hold negative views on the permissibility of public displays of religion hate people of faith. The firestorm would be searing. And if he were to do such a thing he would have earned the opprobrium.

If any public servants should know better than to engage in the Kennedy-Breyer thought crimes escapes, it would be Supreme Court justices. If they resort to name-calling and impugn the motives of others, we should expect even worse behavior from the political activists and voters. Unfortunately, that is exactly what we will get.

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.