Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

From Legal Judgment to Political Approbation

James Skillen


July 14, 2003

The U.S. Supreme Court was established to make one kind of judgment: to decide whether laws passed by state and federal governments square with the requirements of the Constitution. The court is increasingly becoming something else: a committee that gives the final stamp of approbation to laws that its majority believes best fit our changing society.

Take the two hottest cases just decided: the University of Michigan affirmative action decisions and the Texas anti-sodomy reversal. Critics on opposite sides of the issues are harsh. Michael Kinsley says the Michigan decisions show "utter logical confusion." Charles Krauthammer says they are "intellectually muddled and morally confused."

On the Supreme Court's Texas decision, Deal Hudson of Crisis Magazine says it is "without question the most damaging decision handed down by the court since Roe v. Wade." Jeffrey Rosen of The New Republic sees in the court's decision an "unprincipled and unconvincing constitutional methodology," which is "undisciplined" and reliant on "judicial fiat."

Space here does not allow for an analysis of the cases, the court's reasoning, and evaluations by critics. But to illustrate the main point, consider only the way in which Justice Anthony Kennedy (writing for the majority) relied on the "right of privacy" in the sodomy case. This is the so-called "right" that was invented in the 1973 Roe v. Wade decision by fiat of the justices, not by exegesis of the Constitution. Now Justice Kennedy argues that no state interest "can justify its intrusion into the personal and private life of the individual." A legislative majority that happens to disapprove of homosexual practice as immoral has no right to legislate its morality in this case.

The Supreme Court's very decision, however, amounts to the counter-legislation of morality. In the absence of any constitutional guarantee of homosexual rights and in the absence of any general principle that permits everything in private, the court has simply decided that gay sex in private is o.k.

If privacy is the key here, however, then why should a state have any right to legislate against incest or ritual mutilation as long as it is done in private? The reason, of course, is that state legislatures (and probably the court's justices) would find such activity immoral even in private. Yet the only ground the court has left itself for approving such laws is its own approbation, not a constitutional argument. And this means that the court is now choosing to act as ultimate legislator and not only as constitutional reviewer. The end of that road, it seems clear, will be increasing disregard for the court's legal judgments and ever greater demand that it fulfill the function of chief approbation committee for the political desires of those who control appointments of Supreme Court justices.

And what do you know, that is exactly what is taking place in the battles between the White House and the Senate over judicial appointments. After constitutional adjudication has been reduced to legislative approbation, the next step is the reduction of legislative responsibility to a mere struggle for political advantage.

Does this mean that "gay marriage" might soon be discovered to be a necessary consequence of the right of sexual privacy? That could well happen, especially if the court reasons like the editors of the Washington Post do: "What the relationship is called—whether marriage, civil union or something else entirely—seems to us less significant than providing formal legal recognition." Yet how can formal legal recognition be given to something that has no precise definition? That is easy, because things like "privacy" and "affirmative action" can be given any definition the court chooses—or none at all—as long as the outcome suits those who have control.

—James W. Skillen, President
    Center for Public Justice


“To respond to the author of this Commentary please email:
Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”