Paul Greenberg

One of the great justices of the U.S. Supreme Court once said of the court: "We are not final because we are infallible, but we are infallible only because we are final." --Robert H. Jackson.

Whether the country will ever again see his like on the Supreme Court now requires a measure of faith. The closest the current collection of justices may come to greatness is a certain egocentricity. Think of Antonin Scalia, who is better known for his sharp repartee in dissent than any philosophy of law. As a judge, he is a great showman.

Justice Scalia's theory of originalism -- that it is possible to divine the intentions of the Founding Fathers at this late date, and then apply them to current case law, is less a philosophy than a bout of nostalgia. And an impressive feat of mindreading, too.

Justice Clarence Thomas' literal-minded reading of the law at least offers some predictability, which is what good law should provide. But his decisions stand out only because of their simple clarity, not any great vision.

The general run of mediocrities who make up the rest of the court would seem dedicated above all to avoiding clarity -- and therefore finality, the one quality that makes such a court indispensable in a constitutional system.

On issue after issue this term, case after case, the court's decisions rang clear as a muffled bell. A number of its rulings left legal scholars and mere newspaper columnists scratching our heads looking for conclusions that weren't there.

The bright, shining exception to this dismal rule was the court's decision to overturn the Voting Rights Act of 1965, or rather bring it up to date. That decision was testimony not to how badly the law had worked, but how well. Because it's evident that the Voting Rights Act has changed the complexion, literally, of the American electorate. It did so by finally recognizing the long-ignored right of American citizens to vote in the states of the Old Confederacy. It was about time this long after The War.

To reach its decision, the court needn't have consulted any law books but only a calendar. Or just look around to realize that the old Voting Rights Act was no longer needed. Indeed, the act had become discriminatory itself -- by imposing burdens on only selected parts of the country.

The rest of the court's docket this term added up to a general muddle. For example, is homosexual marriage in this country now legal? Your guess is as good as mine. Discriminating against homosexuals in federal law would seem to be illegal now, but states that recognize only traditional marriage -- that is, between man and woman, husband and wife -- still may do so. For now.


Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.