07-08-2000
LEGAL AFFAIRS: How the `Conservative' Supreme Court Leans to the
Liberal Side
On July 2, when Sen. Orrin G. Hatch, R-Utah, said on NBC's Meet the Press
that the current Supreme Court is "centrist-left," many a
Washington journalist (among others) sniggered. Hadn't Hatch read the
papers or watched any televised news within the past few days-or the past
25 years? Did he miss the recent editorial in the Los Angeles Times, which
called the Court "unblushingly conservative"?
In fact, Hatch was exactly right. Right, that is, if one relies on the
reference points that most news consumers would use to locate the Court's
major decisions on the ideological spectrum (the political attitudes of
most ordinary Americans-not most law professors and Washington
journalists). Although I have touched on this before, recent decisions and
poll results underscore that on the hottest issues around--abortion,
religion, affirmative action preferences, gay rights-the Court is more
centrist-left than it is conservative.
* Abortion. The public disagreed, 49 percent to 41 percent in a Newsweek
poll, with the 5-4 decision on June 28 that swept away the laws of 31
states banning late-term abortions, the second and third trimester
procedure that the four dissenters (including moderately
pro-abortion-rights Justice Anthony M. Kennedy) found disturbingly close
to infanticide.
Athough sampling errors can skew any poll, this survey was consistent with
many earlier ones that show wide public disapproval of the procedure. In
addition, a Los Angeles Times poll in mid-June found that 65 percent of
those responding (including 72 percent of the women) said that after the
first three months of pregnancy, abortion should either be banned or
allowed only in cases of rape, incest, or to save the woman's life. This
finding suggests disagreement with the breadth of the 1973 Roe vs. Wade
decision's recognition of an almost unlimited right to have an abortion
during roughly the first six months of pregnancy, and a right to abort
even a viable fetus up until the end of pregnancy if a doctor finds it
necessary to protect the woman's emotional or physical health.
This and other polls suggest that the Court is more liberal than the
public on abortion. To be sure, the data show considerable public
ambivalence and some logically inconsistent responses to differently
worded questions. While the Newsweek poll found by 62 percent to 31
percent that respondents wanted any new Justices to uphold Roe and
continue "protecting a woman's right to an abortion," the Los
Angeles Times survey found that only 43 percent of respondents expressed
support for Roe, down from 56 percent in 1991.
Such disparities may reflect some confusion about exactly what the Court
actually did in Roe, and what would happen if the decision were overruled.
Small wonder, when journalists such as Time's Eric Pooley tell their
readers that by "overturning Roe vs. Wade," a more conservative
Court would "ban abortion." In fact, no Justice in history has
suggested that he or she would ban abortion. As all scholars and most
journalists know (but rarely say), overturning Roe would ban nothing, but
rather leave it to elected officials to decide how (if at all) to restrict
abortion. And most states would continue allowing fairly broad abortion
rights.
* Religion. Six Justices seem far more liberal than the public on school
prayer and closer to the center on aid to religious schools: Respondents
to the Newsweek poll disagreed by a whopping 68 percent to 29 percent with
the 6-3 decision on June 19 that public school districts cannot promote
prayer before high school football games. This is in keeping with polls
going back to 1962, when the Court first banned state-sponsored prayer in
public school classrooms. Respondents were almost evenly divided on
another 6-3 ruling, the June 28 decision allowing use of taxpayer money to
buy computers and textbooks for religious and other private
schools.
* Affirmative action preferences. Polls consistently find majorities both
against racial "preferences" and in favor of "affirmative
action." One reason is that "affirmative action" is broad
enough to include a range of nonpreferential efforts to remedy a legacy of
racial oppression and discrimination. Meanwhile, many major news media
have virtually banished the once-common phrase "racial
preferences" in favor of "affirmative action."
But preferences are the only kind of affirmative action that anyone on the
Court has ever sought to strike down. Four Justices appear ready to void
most or all governmental affirmative action preferences; four would uphold
most of them; and Justice Sandra Day O'Connor is in the middle. She has
held that such preferences are unconstitutional unless "narrowly
tailored" to further a "compelling governmental interest,"
but has left the door open enough for thousands of federal, state, and
local preference programs to continue.
The Newsweek poll sought to avoid loaded terminology by asking people
whether they would prefer any new Justices to rule in favor of, or
against, "allowing affirmative action preferences for things like
jobs, government contracts, and school admissions based on race."
Fifty-two percent said against, 36 percent in favor. This seems to put the
Court in the center or marginally to the left of the public.
* Gay rights. Newsweek poll respondents did not want any new Justices to
allow "groups to exclude gays and lesbians if they feel homosexuality
is morally wrong," by a tally of 46 percent to 41 percent. This is
consistent with the June 28 assertion by Justice John Paul Stevens and the
three other more-liberal justices (in dissent) that public attitudes
toward homosexuality are changing.
But when asked about the 5-4 ruling by the more-conservative Justices that
the Boy Scouts of America has a constitutional right to block gay men from
becoming troop leaders, respondents agreed by 56 percent to 36 percent.
What explains this apparent inconsistency? Perhaps the results reflect the
popularity of the Boy Scouts. Perhaps some respondents agreed with Chief
Justice William H. Rehnquist's holding that having gay scoutmasters would
"force the organization to send a message, to youth members and the
world, that the Boy Scouts accepts homosexuality as a legitimate form of
behavior." Perhaps some agreed with one Steffen N. Johnson's
assertion in a June 30 New York Times op-ed that "it is not a civil
right to assist in raising other people's children."
The decisions that can most aptly be called "conservative" are
those curbing federal power over the states and over local matters
traditionally regulated by the states. All of the rulings have been by 5-4
conservative-liberal tallies, and have been more solicitous of states'
rights than the Court had been in decades. But it is hard to compare this
line of decisions with public opinion, because no polls have shed much
light on attitudes about the complex debate over federalism.
Am I adding a political spin of my own here? Perhaps I should disclose
some views: I would support fairly broad abortion rights were I a
legislator. My Oct. 9 column (which, on reflection, I am not sure was
right) argued that laws against partial birth abortion made no sense. The
Boy Scouts deserve harsh criticism (but not legal penalties) for excluding
gays. The Court has been right (albeit sometimes unduly sweeping) in
striking down state-sponsored school prayer. I support affirmative action
preferences in college admissions for promising low-income students, and I
am sympathetic to cautious promotion of racial-as well as religious and
political-diversity in choosing among equally qualified applicants. The
more-conservative Justices have gone too far for me in some states' rights
cases, and have done too little to ensure fairness to indigent criminal
suspects and defendants, especially those who are black, Hispanic, or
facing the death penalty. And I have a hard time making up my mind about a
lot of things.
But not everything. I am quite confident that respondents to the Newsweek
poll came a lot closer to the mark than many journalists and law
professors when asked: "Judging by its recent decisions, do you think
the Supreme Court is generally liberal, generally conservative, or is
making decisions more on a case-by-case basis?" Seventeen percent
chose "liberal," 13 percent chose "conservative," and
61 percent chose "case-by-case basis."
None of this is to suggest that the Justices should consult public opinion
in the way that elected officials routinely do. One credo of liberal
jurisprudence for more than 50 years, and it's something I agree with, has
been that the Court has a special mission to protect traditionally
disadvantaged minorities against the tyranny of the majority. But news
organizations purport to have a special mission of their own: to tell
their readers and viewers where the Court is-not just what they don't like
about it.
Stuart Taylor Jr.
National Journal