June 02, 2005,
The thesis of Jeffrey Rosen’s article “Out of Order” in last week’s New Republic is that that these days “the people’s will is better represented by the Supreme Court than Congress.” The key sentence is: “And, as the public sided with liberals in the culture wars endorsing gay rights, affirmative action, and access to early-term abortions so did the Court.”
There are at least two problems here. The first is that it is not at all clear that the public sides with the Court on these issues. The second is that whether it does or not ought to be irrelevant to the Court.
On the first point, consider, for instance, a Harris Interactive survey taken in July 2003, just after the Court’s decisions in the University of Michigan cases. The survey found that 76 percent of Americans disagreed with the proposition a fair statement of the Court’s ruling that “A university is allowed to use race as one of several factors in deciding whom to admit.” Only 19 percent agreed. This is in line with many other surveys, and it is simply not true to say that the public favors the racial preferences the Court has allowed.
Or consider gay rights. Popular initiatives in state after state have rejected gay marriage, as Rosen himself concedes later in the same paragraph. In the Court’s two gay-rights decisions, it had to strike down not only a Texas state statute but also a Colorado state-wide popular referendum that had passed just four years earlier.
But the more fundamental problem with Rosen’s thesis is that it is not the Court’s job to figure out what the public wants and then constitutionalize it. The Court, rather, is supposed to determine whether a law however popular or unpopular is consistent with the Constitution.
You can read the Fourteenth Amendment all day and not find anything in it about the legality of gay sex, which was the issue in Lawrence v. Texas. This is not surprising, since it is ludicrous to suppose that the amendment’s framers and ratifiers in 1868 thought they were enacting a gay-rights bill. It is as ludicrous to suppose they were enacting an abortion-rights law. There is nothing anywhere in the Constitution about abortion, as even liberal law professors have long conceded.
With regard to racial preferences, on the other hand, you have to work very hard not to find a ban on them in the 1964 Civil Rights Act, the relevant part of which reads: “No person in the United States shall, on the ground of race, color, or national origin, . . . be subjected to discrimination . . . .” But the Court has managed to ignore these words.
So the Court is a lousy barometer of public sentiment and a lousy interpreter of legal texts. What it is good at is reflecting the policy preferences of American elites and, increasingly, European elites as well. This is what Congress is upset about.
Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.