The Three Stooges 

For the last week we have been reminded by various pundits that the justices of the U.S. Supreme Court are “unpredictable,” often surprising the presidents who appointed them. It would be more accurate to put it more narrowly: justices appointed by Republican presidents often issue the most liberal rulings.

Think of Earl Warren and William Brennan (Eisenhower picks); Harry Blackmun (Nixon); John Paul Stevens (Ford); Sandra Day O’Connor and Anthony Kennedy (Reagan); and David Souter (the first Bush). Felix Frankfurter, chosen by Franklin Roosevelt, was the last justice named by a Democrat who turned out to be less liberal than expected.

What gets into these people? Who knows? But they have a strong incentive to move leftward once they get on the bench: glory. The more sweepingly liberal the ruling, the more surely the press will hail it as a “historic” or “landmark” decision — words seldom if ever applied to conservative rulings. The Republican appointee who racks up enough of these “historic” rulings can be assured of flattering profiles in the New York Times and the Washington Post, cooing that he (or she) has “grown” in the office, “abandoned ideology” (translation: adopted liberalism), and “surprised friend and foe alike” (translation: betrayed friends).

These encomia are to justices what rave reviews are to an actor. They go to the head. They also serve notice to other Republican appointees that the way to get flattering headlines is to disappoint and outrage conservatives.

Besides, liberals love it when supposed conservatives do their work for them. In 1973 the Court’s liberals, particularly William Brennan and William O. Douglas, realized that they would take less heat if Harry Blackmun, recently named to the Court by Richard Nixon, wrote the majority opinion striking down the abortion laws of all 50 states. So Blackmun served as their willing stooge and reaped praise in the big liberal media for the rest of his life.

O’Connor, Kennedy, and Souter are now the Court’s three Republican stooges. Souter is so liberal he hardly counts anymore, but the press still calls O’Connor and Kennedy “moderates,” preserving their cover. All three of them came through for the liberals last week. O’Connor and Kennedy wrote the majority opinions in the affirmative action and sodomy cases.

To them the glory goes for this week’s Times headline gloating that in the just-completed term, “Court Remakes Law.” Now “remaking” the law isn’t actually part of the Court’s job description; the Constitution seems to assume that the Court will merely expound the law and abide by it. But “Court Sticks to Law” would be a dull headline. Definitely not front-page stuff.

For liberals, the Constitution as written is boring old music. They want the Court to play ingenious new variations on it, jazzing it up with penumbras and emanations until it sounds like a totally different work, one they can really dig.

In the sodomy case, Kennedy and O’Connor proved themselves virtuosos of the non sequitur. They agreed that sodomy laws “discriminate” against homosexuals as a “class” or “group.” Kennedy, ever the metaphysician, added that such laws “demean their existence.”

But of course the law in question said nothing about classes or groups; it merely forbade specific sexual acts. You might as well say that laws against theft “discriminate” against burglars as a class (or should we say “demean the existence of the larcenous community”?). By Kennedy’s logic, laws forbidding the sodomizing of children discriminate against pedophiles as a class. Where do you draw the line?

You can’t. Kennedy’s and O’Connor’s style of thinking makes it impossible to draw any lines except arbitrary ones. They are engaged in what might be called jurisprudence sans frontieres. It’s not the rule of law; it’s empty verbal improvisation.

Substitute pedophilia for sodomy, and the Kennedy-O’Connor arguments could have served just as well to declare pedophilia laws unconstitutional. In fact such laws could have been condemned for adding another dimension of “discrimination”: age.

Such nebulous free-association reasoning can lead anywhere, depending on the personal preferences of the justices. I was about to say that I’d hate to live in a country where the law could mean whatever its rulers said it meant, when it occurred to me that I already do.

Joseph Sobran