O'Connor's Fickle Constitution


26 June 2003

By a 6-3 vote, the U.S. Supreme Court has struck down a Texas law prohibiting "deviate sexual intercourse with another individual of the same sex" as a violation of the constitutional right to privacy. CNN reports the decision, Lawrence v. Texas, also "appears to cover similar laws in 12 other states," some of which applied to heterosexual sex as well. Blogger Phillip Carter speculates that this ruling may prompt a legal challenge to the sodomy prohibition in the Uniform Code of Military Justice, which, if successful, could effectively end the ban on open homosexuals in the armed services.

Civil laws prohibiting consensual sodomy were an anachronism, and the country is well rid of them. Yet we'd say the court got it right in Bowers v. Hardwick (1986), when it ruled that the U.S. Constitution is no bar to such laws. At the time the court decided Bowers, 24 states had sodomy laws; by yesterday only 13 did. By short-circuiting the political process, which seemed to be moving in the right direction anyway, the Supreme Court took away a little bit of Americans' democratic freedom.

At the same time, one can't really accuse the court of making up a new right out of whole cloth--at least not in this case. The court's "privacy" jurisprudence, which has no basis in the text of the constitution, goes back nearly four decades, to Griswold v. Connecticut (1965), which established a constitutional right to marital privacy (specifically, for married couples to use contraceptives). In 1973, Roe v. Wade established a right to reproductive privacy, and although the court acknowledged that "a State may properly assert important interests . . . in protecting potential life," in practice this hasn't amounted to much. The establishment of a right to sexual privacy, which is effectively what Lawrence does, seems a natural, perhaps even inevitable, progression from Griswold and Roe.

Here's something odd, though. In a 1992 case called Planned Parenthood v. Casey, the court by a 5-4 vote upheld Roe v. Wade--or actually, it upheld the outcome of Roe v. Wade, but three justices--Sandra Day O'Connor, Anthony Kennedy and David Souter--swept aside Roe's rationale and offered a new one of their own, in a decision for which all three shared authorship. Part of this rationale rested on a curious theory about the court's political authority:

Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown [v. Board of Education] and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.

O'Connor, Kennedy and Souter all voted with the majority today in striking down the precedent the court set 17 years ago. Kennedy wrote the decision in Lawrence, and O'Connor actually switched positions; in 1986 she voted with the majority in Bowers. (In a concurring opinion in Lawrence, she says, rather implausibly, that althogh she agrees with the result of today's case, she does "not join the Court in overturning" Bowers.)

Does this mean they don't think the issue of sodomy laws is a very important one, compared with segregation and abortion? That's a plausible position to take, but gay-rights activists are already likening today's ruling to Brown. (This is a bit overwrought, seeing as how sodomy laws were rarely enforced anyway.) Or is it only liberal rulings that have "rare precedential force"?

And in this regard, what is one to make of Monday's decision in Grutter v. Bollinger, which upheld some racial preferences in college admissions? This was certainly an attempt to settle a "divisive controversy"--and yet far from claiming a "rare precedential force," Justice O'Connor, in her majority opinion, actually suggested the ruling has a time limit: "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."

So here's a summary of Justice O'Connor's constitutional views:

* Abortion may or may not have been protected by the Constitution in 1973, but it definitely was in 1992 because the court said so 19 years earlier.

* Homosexual sodomy was not protected by the Constitution in 1986, but it is in 2003.

Racial preferences in college admissions are permitted by the Constitution in 2003, but the same Constitution is likely to prohibit them in 2028.
In Bush v. Gore, the case that resolved the 2000 election dispute, the court's majority opinion--unsigned but believed to have been a collaboration between O'Connor and Kennedy--disclaimed any precedential value: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Such an approach was defensible in that particular case, since the court was called on to resolve a political crisis, and speed arguably was more important than judicial craftsmanship.

But in its decisions involving privacy and race, the court has had decades to work out the legal principles involved. Whichever side of a given issue you're on, you can discern a clear philosophy behind the legal opinions of an Antonin Scalia or a Ruth Ginsburg. The same can't be said for O'Connor, for whom the Constitution is not only a living document, but an extremely fickle one.

Scalia Imitates Seinfeld

" 'The court has taken sides in the culture war,' Scalia said, adding that he has 'nothing against homosexuals.' "--CNN.com, June 26, 2003

"We're not gay! Not that there's anything wrong with that . . ."--Jerry Seinfeld, "Seinfeld," Feb. 11 1993