"Against every principle of states' rights and judicial self-restraint," moans columnist Sidney Zion, "the Rehnquist court moved into Florida like an occupying army and effectively put George W. Bush into the Oval Office." Vermont Sen. Patrick Leahy could barely contain himself: "Their credibility is so diminished," he fulminated, "and their moral posture is so diminished, it will take years to repair." "The court, at least in my eyes, has damaged its credibility," intoned Sen. Bob Kerrey of Nebraska, conscience of the Senate. The New York Times called the criticism from Democrats "so harsh that it was reminiscent of the 1960s, when conservatives sought to impeach Chief Justice Earl Warren." The Rev. Jesse Jackson threatens a "civil rights explosion" if the Supreme Court rules against Gore.
Liberals aren't used to this. For the last 50 years, the courts have been their personal secret weapon. Again and again, conservatives arduously use the democratic process to gain legislative victories -- only to see the Supreme Court rummage around mysteriously in that black bag they call our constitutional values and pull out a trump card for the liberal view.
Judeo-Christian values are deeply judicially suspect. But any value held by someone with a Ph.D. via the latest French postmodern deconstructionist? That's in the Constitution, stupid.
The courts don't always rule in the left's favor (witness their excruciatingly narrow 5-4 Supreme Court loss in the obscene effort to have the government force the Boy Scouts to accept NAMBLA's moral views). But when courts do move to overturn the will of the majority, it is almost always in defense of liberal interpretations of fairness or social justice. How could the Supreme Court betray this sacred trust, this founding principle of our democracy?! Liberals are used to the idea that they have two chances to win: in the arena of public opinion and, failing that, in the courtroom.
In Cleveland, for example, a federal appeals court just struck down the city's school voucher plan because parents could use their vouchers at religious schools. No secular human, by contrast, need fear that courts will rule that public schools as currently structured violate constitutional guarantees of religious freedom, because they require parents to submit their children to a secular education as a condition of state aid. Yesterday I read two distinguished legal scholars have published an essay arguing that abstinence education in public schools violates religious freedom because it is based on Christian values. Only moral values unacceptable to the Judeo-Christian majority can, under this new legal theory, be taught in public schools. Liberals don't worry, as I do, that even minor political victories for common values such as teens postponing sex will one day be overturned by courts.
We pass marriage laws; the courts (in Hawaii and Vermont) impose gay marriage law. We pass laws restricting the unfettered right to kill babies in the process of being born; the courts overturn them as potential infringement on the mysterious right to kill unborn babies they said emanates from somewhere in the U.S. Constitution. We fight to defeat the ERA; the courts rule that old fuddy-duddies can't even hang out in private men's clubs together without putting the Constitution at risk. Coloradans say sexual preference should not be, like race, entitled to special legal protection; the Supreme Court says the majority can't make decisions like that for the state in which they live.
If Democrats want to threaten the moral authority of the Supreme Court -- the very authority they depend on for forcing the rest of us to accept abortion on demand, gay marriage and a rewriting of our "backward" (read: Judeo-Christian) ideas of sexual virtue -- I say let 'em.
Maggie Gallagher is a nationally syndicated columnist, a leading voice in the new marriage movement and co-author of The Case for Marriage: Why Married People Are Happier, Healthier, and Better Off Financially.