March 7, 2005

Does Changing Your Mind Hurt America?

Republicans once again mistake maturity for activism. Commentary by Gelf's legal correspondent.

Aaron Zamost

During the 2004 campaign, President Bush's favorite sound bite was, "The only thing consistent about my opponent's position is he's been inconsistent." Conservatives now have similar complaints about one of their own, lifelong republican and Reagan appointee to the Supreme Court, Anthony Kennedy. As William Rehnquist prepares for retirement (most court watchers speculate that Rehnquist, having been diagnosed with thyroid cancer last year, is in his last term), Republicans are preparing to nominate a new Chief Justice. It is the Chief Justice's job to set the calendar, build consensus, and represent the court publicly, although as the de facto leader of the bench, the chief also tries to instill his own theories of law into the court's agenda by deciding who writes the court opinions and offering his views first at meetings. Once a fan-favorite, Kennedy has lost support of late, as Republicans rally behind conservative demagogue Antonin Scalia (Bush's favorite person ever).

Last week, in Roper v. Simmons, the Supreme Court ruled that the execution of juvenile offenders was unconstitutional, reversing a 1989 decision that stated that such executions were permissible and did not constitute cruel and unusual punishment. That Kennedy wrote last week's majority opinion was even more surprising than the decision itself, since fifteen years ago he sided with the majority in the case that Roper reversed. Republicans have been quick to criticize Kennedy for what they see as inconsistency unbecoming of a Supreme Court Justice and, even worse, inconsistency that leads to liberal activism. (I wrote about the Court's quasi-liberal streak last week.) Apparently, Republicans don't do nuance. For them, there's no room on the bench for re-examining old viewpoints or even re-evaluating American law based on evolving standards of moral decency.

For many conservatives, the Constitution is a sacred, never-changing document; no one should ever sway from the text's "original meaning." In other words, if it was constitutionally acceptable to execute juveniles in 1789, then the same rule should exist today. Strict constructionists are the legal equivalent of religious fundamentalists, and for them, court-based interpretations of the Constitution are no substitute for voter-sanctioned legislation—the Word of the people. For Kennedy's critics, any time the court decides that times may require a different reading of the Constitution, it is as though those justices are forcing their subjective views on the will of the people. In Scalia's view, changes in popular opinion shouldn't replace judicial independence. It would have been better for Kennedy to have kept his previous position than use "evolving standards" as a basis for change. Rep. Steve Chabot (R., Ohio) called Kennedy's reversal "a clear-cut example of policy-making from the bench." Scalia whined that the court had now proclaimed itself "the sole arbiter of our nation's moral standards."

No one seems to remember that in 1992, in Planned Parenthood v. Casey, Scalia also stated that abortion was not a constitutionally protected liberty interest because "longstanding traditions of American society have permitted it to be legally proscribed." But those same "longstanding traditions of American society" also permitted Jim Crow laws and segregation, which were apparently not enough to stop a unanimous court from rolling back those laws in Brown v. Board of Education. There the court stated, "We cannot turn the clock back to 1868, or even to 1896 when [separate but equal was originally deemed constitutional]. We must consider public education in the light of its full development and its present place in American life ..." If he were there, perhaps Scalia would have dissented from that case, declaring that a strict reading of the Constitution required a finding that blacks are only 3/5 citizens, and that a 1954 "national consensus" demanding social equality was no match for the original opinions of slave owners.

The Wall Street Journal editorial page condemned Kennedy for outlawing juvenile executions, instead of "defer[ring] to the will of the voters." The editors conveniently forgot that in Bush v. Gore, Kennedy and four other justices famously failed to defer to the will of the voters when they put the kibosh on the 2000 recount. Nonetheless, the Journal's point should not be quickly dismissed—if a majority of Americans endorse a specific rule of law, it makes sense that a group of nine should not be able to set aside that rule arbitrarily. But the Supreme Court does that every day: when Congress passes a law it doesn't actually have the authority to pass, or when the people pass a law that violates the Constitution. There are limits to what the "will of the voters" can accomplish. If the court believes that executing juveniles is unconstitutional, then, sorry, but the voters have no say.

As for Kennedy's political bona fides, it's also fairly easy to forget Kennedy actually voted against affirmative action when the Right is busy calling him a "pastel version of a conservative," as did Bruce Fein, a former Justice Department official in Republican administrations.

Kennedy doesn't deserve this type of criticism. It's one thing to say that maybe the Supreme Court shouldn't take into account international law (as Roper did), or that there is no "national consensus" (which Kennedy claimed there was), when only 47% of states prohibit juvenile executions. But it's quite another to complain that an opinion is weakened by the fact that it differs from a previous interpretation.

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- Law
- posted on Mar 08, 05

It is very true that the Supreme Court can and does throw out laws passed by Congress or by "the people". They do this, as you say, when the law violates the Constitution but not, as you say, arbitrarily. Often, though, it is very unclear what does and does not violate the Constitution. In Roper the question was whether executing children was "cruel and unusual." It seems self-evident to me that killing a child is cruel, but as Justice Kennedy points out, the Eighth Ammendment "must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function". This seems to require at least some deference to the "will of the voters". Luckily there are other metrics for judging "the evolving standards of decency" than waiting for a bunch of wahoos to join the national consensus. The Court did the right thing, but Justice Scalia may be correct that they could only do it by becoming the "arbiter of our nation’s moral standards.”

Article by Aaron Zamost

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