The Court versus Federalism 

The U.S. Supreme Court has done it again, striking down a Texas law prohibiting homosexual acts. I haven’t read the opinion yet, but I think I get the idea. As usual, the Court is being “progressive.”

I’m still reeling from Sandra Day O’Connor’s majority opinion in the affirmative action cases, issued earlier this week. In the excerpts published in the papers, she managed to use the words diverse and diversity nearly fifty times. Nobody would call her prose musical.

O’Connor is a walking example of affirmative action. Ronald Reagan wanted to be the first president to appoint a woman to the Court, so he picked her, a woman judge with no particular distinction but lots of Republican connections. Her nomination was hailed as “historic,” like — the inevitable comparison — Jackie Robinson playing in the big leagues.

The difference is that Robinson was good at what he did. He wasn’t picked to fill a quota, or to provide diversity. He was chosen because he was a great athlete, and he could win ballgames. Which he proceeded to do for many years with the Brooklyn Dodgers.

O’Connor has made her niche as a “swing vote” on the Court. Her mind is perfectly banal, but you never know which faction she will vote with. She is politically, not intellectually, interesting.

The Court’s first affirmative action justice was Thurgood Marshall, who was equally devoid of original thought but predictably liberal. He never deviated. He never surprised. He never sharpened one’s understanding of constitutional law. Never even coined a fresh phrase.

All Marshall cared about was results. He always knew the outcome he wanted and voted accordingly. His reasoning was perfunctory, and today nobody quotes him.

I love diversity, really I do, but you don’t achieve it by gathering mediocre people with the sort of superficial differences that interest liberals. You can get real diversity by assembling a group of people with keen minds, even if they look identical. A half-dozen lively minds will produce a richer conversation than a hundred dullards. Seek intelligence first, and diversity will take care of itself.

In the affirmative action cases, O’Connor didn’t even cite the Constitution. She merely echoed the Pledge of Allegiance — “one nation, indivisible” — which has no legal value, but does have dubious constitutional implications (which she is probably unaware of).

Maureen Dowd of the New York Times bitterly ridicules Clarence Thomas for opposing affirmative action, since his race was obviously a chief factor in his own selection for the Court. In effect she accuses him of biting the hand that fed him.

But by her logic, a man who gets a seat on the Court through bribery should thereafter vote in favor of bribery. Happily, however, Thomas has shown a better understanding of the Constitution than most of his colleagues. He realizes (most of the time) that the Tenth Amendment is the cornerstone of American federalism.

The real genius of the American political system is the original understanding, born more of experience and compromise than of theory, that power should be limited, divided, and dispersed. Spreading power thinly is one way — imperfect, but practical — of protecting liberty.

Unfortunately, most Americans have lost their grasp of this vital idea, to which this country owes so much of its real greatness. Since the Civil War the prevalent tendency has been to concentrate power, enabling the Federal Government to dictate terms to the states. This is contrary to the principle of the Tenth Amendment and to the very structure of the Constitution. Supposedly “progressive,” centralization repudiates and undermines America’s best heritage.

Instead of opposing this centralizing tendency, the Court itself has become an instrument of centralization. It’s up to its old tricks in striking down the Texas sodomy law.

Maybe it’s a bad law, but that isn’t the real question. The issue is whether it’s up to the Federal Government, including its judicial branch, to make and enforce that judgment. Nothing in the Constitution says, or remotely implies, that it is.

In a truly federal system, states are united on a few specified points, but free to differ in all other respects. How ironic, but how typical, that the apostles of “diversity” want to make the states uniform. Real diversity, the kind the United States used to have, is the last thing they want. This is E pluribus unum with a vengeance.

Joseph Sobran