Supreme Court willing to follow elite’s lead
Often a nation’s political elite will hold views on policy questions that are squarely at odds with majority opinion in the country. When this happens, the majority may – or may not – get its way. One current spectacular example involves the death penalty in Western Europe. Opinion polls in most West European nations, specifically Britain and France, show that solid majorities support the death penalty. Yet elite opinion in these countries is strongly against capital punishment, and the elites have uniformly prevailed. The same phenomenon can be observed in the United States on a number of issues. Not only polls, but public referenda show that public opinion is firmly against “affirmative action,” whereby states grant valuable preferences to individuals of a specific race or ethnicity. But the blizzard of amicus curiae briefs from universities, corporations and even high military officers that inundated the Supreme Court when it was deciding the recent University of Michigan cases on this issue made it clear that elite American opinion is, on the contrary, all in favor of affirmative action.
This presented the Supreme Court with a dilemma. On the one hand, it is sworn to uphold the Constitution, which on this subject is not at all ambiguous: Under the 14th Amendment, no state shall “deny to any person within its jurisdiction the equal protection of the laws.” On the other hand, the court has never been immune to the tug of elite opinion and, in recent decades, has repeatedly disregarded the plain meaning of the text of the Constitution to find in favor of people and causes favored by the elite.
In the Michigan cases, the court rather confusedly split the difference, ruling that the undergraduate school’s awarding of 20 points (out of a total of 250) to black applicants merely because of their skin color was unconstitutional, but upholding the law school’s less rigidly mathematical efforts to attain a supposedly desirable level of “diversity” in its racial mix. Given the known views of the elites who govern university admissions, the court can expect that henceforth race will be taken into account to any extent needed to achieve the desired level of diversity. So America’s elite wins again.
In the Texas sodomy case decided in the same week, elite American opinion was virtually unanimous in opposing the Texas law outlawing private homosexual acts. And in this case, polls suggest that a national majority has been shifting in recent years in the same direction: Texas is one of only 13 states that still have such a law.
This might seem to make the court’s task easier, but for the federal principle which leaves the enactment of criminal laws up to the individual states.
A national majority may oppose outlawing homosexual acts, but the legislature of Texas, which must be assumed to represent the views of its people, has left the law on the books.
Sure enough, the court sided with elite and national-majority opinion, rejecting the right of Texans to see otherwise. To reach this result, the court resorted to an old favorite: the supposed “right to privacy,” which is nowhere spelled out in the Constitution but is allegedly to be found in “emanations” from its “penumbras.”
What these various cases boil down to is the blunt fact that a majority of the present Supreme Court is willing to make rulings favored by America’s elite, even when the Constitution squarely disagrees. In the words of a dissenting Justice, Antonin Scalia, the court has joined the culture war.
Very well, but let no one suppose that hereafter the appointment and confirmation of Supreme Court justices can be the decorous affairs they used to be. The court has chosen to embroil itself in the deadly serious business of policy-making – on behalf, what’s more, of an elite that is thoroughly contemptuous of public opinion.
Membership on the court, therefore, will rightly be decided by the same knockdown, drag-out rules as the presidency and membership in the Congress. Fasten your seatbelts!
William Rusher is a Distinguished Fellow of the Claremont Institute for the Study of Statesmanship and Political Philosophy.