The Right's Supreme Court Complex

By Michael Kinsley
Friday, May 29, 2009

What conservative Republicans don't like about the Supreme Court can be summarized as the three, or maybe four, A's: abortion, affirmative action and activism. Somehow the notorious Roe v. Wade decision of 1973, giving constitutional protection to a woman's right to choose an abortion, has survived 23 years of Republican presidents (compared with only 12 years of Democrats). Recent Republican platforms have pledged to appoint judges who not only will overturn Roe but will make clear that fetuses have the same rights as people under the 14th Amendment's guarantee of "equal protection of the laws."

Regarding affirmative action, conservatives look around and see racial, sexual and ethnic favoritism everywhere. They see a Supreme Court that keeps declaring in ringing tones that blatant discrimination is unfair, un-American and (when practiced by government agencies) unconstitutional whether it's against minorities and women or in their favor. Yet remarkably little in the way of obfuscation seems to be required for reverse discrimination to pass muster.

"Activism" is the name of their general complaint. As one movement conservative put it seemingly seconds after President Obama announced his choice of Sonia Sotomayor for the Supreme Court seat being vacated by David Souter, "Judge Sotomayor is a liberal activist of the first order who thinks her own personal political agenda is more important than the law as written." Whether Sotomayor can plausibly be portrayed as such a person is unclear. The early evidence is not promising. But the conservative position in these recurring confirmation battles suffers from a more serious defect. It's incoherent.

Which is the "activist" side of the dispute over reverse discrimination? Is it the people who make the objectionable policies -- government officials, by and large, or state legislators, or administrators at state universities? No, they are either democratically elected or they are responsible to political leaders who are elected. They are as free to repeal these policies, offensive to some, as they were to enact them. The "activists" -- the ones who want unelected judges to step in and enforce their personal views -- are those who believe that reverse discrimination in any form violates the 14th Amendment and the various civil rights laws.

Abortion is a bit more complicated. In the debate over Roe v. Wade, adherents of that decision clearly represent the "activist" side. And the critics are right that Roe represents the highest tide of Warren Court activism (even though it came from a Supreme Court with seven Republican appointees, and Earl Warren was gone -- replaced by Nixon-appointee Warren Burger). That doesn't mean the critics of Roe are right on the merits. It means that "activism" is a near-worthless concept, and comparative activism is nonsense. Although I am pro-choice, Roe makes me unhappy because it was poorly reasoned, not because it "went further" than other decisions of the Warren era.

Furthermore, many opponents of Roe would not be satisfied with merely seeing it overturned and the issue returned to the states. The Republican Party platform effectively calls for a litmus test for judges: Will they rule abortion illegal in all 50 states no matter what the people want? Now that would be judicial activism with a vengeance.

Opponents of abortion and affirmative action say -- no doubt sincerely in many cases -- that they believe these activities are offensive to the Constitution. They are not constitutional nihilists. They call things unconstitutional when they actually are unconstitutional, and they don't when they're not. Well, yes. We all do that. Which is why constitutional arguments can't be settled by pointing a finger and shrieking "activist" whenever someone supports a use of the Constitution that you oppose. Some days, the shoe will be on the other foot.

Listening, via the media, to the debate inside the Republican Party, you also have to wonder about the party's commitment to a colorblind society. The Democrats' too, but Democrats don't carry on about colorblindness the way Republicans do. It's clear that the one paralyzing fact about Sonia Sotomayor, to Republicans, is the color of her skin. If she weren't Latino, they would be in full revenge-for-Clarence-Thomas mode. Instead, they are in an agony of indecision, with GOP strategists openly warning: Support the Latina or die. If the 40 remaining Republican senators end up voting for Sotomayor, her race will be the reason. Democrats, meanwhile, can enjoy supporting her for her impressive intellectual qualifications. They don't even need to mention the obvious: that these qualifications aren't the main reason President Obama picked her.

Yes, of course, ethnicity in politics is different from ethnic job quotas, and a lifetime appointment to the Supreme Court is a special kind of job. Nowhere is a bit of diversity more obviously desirable. Nowhere is the case stronger for taking race, ethnicity and gender into account. And conservatives apparently agree. If only they could bring themselves to say so.

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