The Future of the Court

June brought some unexpected good news from the US Supreme Court, but that good news only underscores the dangers the Bush administration poses to the future of the American experiment.

In a 6-3 ruling, the court determined that a Texas law making illegal "deviate sexual intercourse with another individual of the same sex" was unconstitutional because it "demeans the lives of homosexual persons." The men who challenged the law, the court said, "are entitled to respect for their private lives."

In its decision -- written by Justice Anthony M. Kennedy -- it said the "state cannot demean their existence or control their destiny by making their private sexual conduct a crime."

A day earlier, the court handed down decisions on two separate cases that, taken together, support the concept of affirmative action in higher education.

The American Civil Liberties Union praised the decisions, calling the ruling on the Texas sodomy statute a landmark decision that "will affect virtually every important legal and social question involving lesbians and gay men."

On affirmative action, the court said race can be used as a positive factor in college admissions, but only if it is one of many deciding factors and if they were applied in on a case-by-case basis.

"Race-based action to further a compelling government interest does not violate the Equal Protection Clause (of the Constitution) so long as it is narrowly tailored to further that interest," Justice Sandra Day O'Connor wrote for the majority in its 5-4 ruling that the University of Michigan's law school could use race as one of many deciding factors for admission.

And while it also voted 6-3 to toss out an undergraduate admissions plan that relied on a point system, this second ruling was narrowly tailored to focus on the specific mechanism used and not the concept of affirmative action more generally.

That was the good news. The bad news is buried in the dissents and in the tightness of the voting. Supreme Court watchers believe there could be several retirements in the next couple of years -- including that of Justice Sandra Day O'Connor and Chief Justice William Rehnquist.

That would give President George Bush a chance to make several appointments to what generally has been a conservative court.

And he has already shown that his inclination is to appoint hard-right jurists who will be hostile to civil liberties and civil rights.

Take note of the dissent written by Justice Anthony Scalia in the Texas sodomy law case. In it he says "The court has largely signed on to the so-called homosexual agenda" and "The court has taken sides in the culture war." Basically, the judge -- and we can assume, Rehnquist and Justice Clarence Thomas, both of whom signed onto Scalia's dissent -- believes there is a compelling public interest in upholding the sodomy law, though like US Sen. Rick Santorum (R-Pa.) earlier this year, he professes to have "nothing against homosexuals."

In Scalia's dissent on the affirmative action ruling -- which Washington Post columnist David Broder described as "sarcastic, dismissive, polemical and smug" -- he said the lessons of racial diversity inherent in a diverse student body were more appropriately learned by "people three feet shorter and 20 years younger than the full-grown adults at the University of Michigan law school, in institutions ranging from Boy Scout troops to public-school kindergartens."

He said the court's decision will lead to "racial discrimination" in employment and added that he was sure that "the nonminority individuals who are deprived of a legal education, a civil service job or any job at all by reason of their skin color will surely understand."

As then-candidate George W. Bush said during his presidential campaign, Scalia is the model on which President George W. Bush will make his own judicial appointments. And his list of successful appointments to date -- which include Jeffrey Sutton and Deborah Cook on the Sixth Circuit Court of Appeals and Michael McConnell on the Tenth Circuit Court of Appeals -- have long records as hard-right ideologues.

The Nation has been stinging in its criticism of William Pryor, the 40-year-old attorney general of Alabama who the president is hoping to seat on the US Court of Appeals for the 11th circuit:

"Pryor has called Roe v. Wade 'the worst abomination of constitutional law in our history.' He's compared homosexuality to necrophilia and incest. He's fought aggressively to prevent the disabled from enforcing their rights under the Americans with Disabilities Act. He's urged Congress to gut a key provision of the Voting Rights Act, which protects the right to vote for African-Americans. He's argued that the First Amendment doesn't mandate 'the strict separation of church and state,' and that 'the challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective.'" (The Nation is launching a drive to stop his appointment.)

And has called Pryor a "right-wing caricature."

Even the Washington Post has called for the defeat of Pryor, saying he shows "several attitudes that should be anathema to any federal judge: contempt for judges with whom they disagree, a vision of the judiciary as essentially political in nature, and a desire to see matters of national controversy resolved in such a way as to highlight the political differences among jurists." It is important to remember that the Post has endorsed the nominations of the other hard-core Bush nominees.

People for the American Way points out that these appellate appointments are not "inside baseball."

"With the Supreme Court taking fewer and fewer cases each year, our federal appeals courts are frequently the final word on interpretations of US law," it says on its Web site.

That's why it's important to remain vigilant in fighting the Bush court agenda and to work to keep Bush from getting a second four years in office.

Organizations involved in the fight include:

The People for the American Way, 2000 M St., NW, Suite 400, Washington, DC, 20036; phone 202-467-4999;

The American Civil Liberties Union, 125 Broad St., 18th Floor, New York, NY 10004;

Americans for Democratic Action, 1625 K St. NW, Suite 210, Washington, DC 20006; phone 202-785-5980; web,

Hank Kalet is a poet and managing editor of the South Brunswick Post and the Cranbury Press. Email

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