The revolution of rising expectations gave way sometime in the past decade to a revolution of rising entitlements. Since then, minority claims have bred a counterrevolution, evident in actions limiting demands made on behalf of women, blacks, homosexuals and other aggrieved groups.
Now the reactionary current has caught up the Supreme Court. In the recent abortion decisions, at least, the court's conservative majority has clearly overshot the mark of fairness.
At the root of the difficulty are the undoubted inequities maintained over long periods against many groups. Demands for an undoing of these practices were given powerful expression by militants in various movements during the early 1960s.
Their grievances were quickly translated into administrative and legislative remedies that attempted to right the wrongs of the past by deliberate bias in favor of injured parties. One after another, all kinds of groups - blacks, women, the handicapped, homosexuals, Indians, aliens - sought speical protection almost like the castes in India.
Reaction developed as these claims impinged upon widespread prejudice and general interests. In many cases, the reaction is well founded, or at least not clearly wrong.
The resistance of state legislatures to the equal rights amendment is surely not an open-and-shut case. To a degree, the campaign for ERA represents the effort of a tiny, militant minority to use the Constitution for symbolic self-assertion.
It was hard for me, anyhow, to complain when the Supreme Court held that the rights of job seniority transcended the obligation for affirmative action on race in hiring policies. Neither am I offended by various local ordinances restricting pornography nor by the Florida referendum denying homosexual rights.
But the abortion decisions are something else. Back in 1973, the Supreme Court ruled that state action prohibiting abortions was an unconstitutional invasion of privacy.
On the basis of that decision many federal, state and city agencies began making abortions freely available to indigent women who could not afford to pay their medical fees. Anti-abortion groups have been contesting these practices by local political action and in the courts.
The Supreme Court last week drove a wedge between the right to an abortion and the entitlement of indigent women to have the state pay for it. The majority, in a set of 6-3 rulings, held that the 1973 decision did "not require" the funding of abortions by the state even though it permitted abortions to individuals.
I understand very well the distinction between what is required and what is permitted. Logically I have no problem with the majority ruling.
But in practice the decision says that people of means have access to state abortions while poor people do not. As Justice William Brennan said in a dissent supported by justices Harry Blackmun and Thurgood Marshall: "A distressing insensitivity to the plight of impoverished pregnant women is inherent in the court's analysis."
The majority decision, to be sure, does not prevent legislative or administrative action to make free abortions available. But given the all-pervasive militancy of the right-to-life lobby, that opportunity is far more theoretical than real.
The court's conservative majority, in other words, has chosen to use narrow logic as a means of averting its gaze from practical consequence. A conservative majority now taken with one hand what it gave with another in 1973. The abortion decisions abort the right to abortion. They recall Anatole France's famous opinion that "the law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread."
Worse still, the decisions are an example of the pendulum swinging too far to the right. They demonstrate how little a conservative majority on the court is deterred, in the fullness of a new-found confidence, from following the lead of the previous liberal majority - the lead that enacts prejudices into law.