By Jules Witcover
6:00 AM EDT, June 28, 2013
The Supreme Court's mixed bag of decisions in the session's final days, particularly on voting rights and same-sex marriage, seized the nation's headlines but did little to bolster its own clarity or credibility.
Interested non-lawyers were left dependent on legal experts to sort out where this highest bench, with a general but not rigidly consistent conservative majority, comes down in today's cultural and political climate.
Liberal defenders of the Voting Rights Act's preclearance monitoring of discriminatory practices in states, mostly in the Deep South, were jolted by the court's split decision to abandon the provision. The majority argued it had become outmoded by virtue of its success. Cited was the much higher racial minority voting and office-holding in succeeding years.
Soon after, the liberals were lifted by different split decisions rejecting the Defense of Marriage Act's federal ban on recognizing same-sex marriage and leaving in place a lower court's voiding of a California law banning it. Democratic Governor Jerry Brown immediately ordered the legal resumption of such unions in the Golden State.
At the same time, conservatives who lauded the derailing of voting rights preclearance were dismayed at the two decisions on same-sex marriage. In their disappointment, however, they clung to the fact the court stopped short of declaring the marriages valid across the land, where about two-thirds of the states still bar legal sanction.
As a result, much reading of tea leaves has been going on, largely but not entirely in the wake of President Barack Obama's two first-term appointments of liberal Justices Sonia Sotomayor and Elena Kagan teaming with Bill Clinton appointees Stephen Breyer and Ruth Bader Ginsberg in support of such unions.
That quartet joined Ronald Reagan appointee Anthony Kennedy in carrying the day against DOMA, after having held the liberal line on the voting rights issue against the usual conservative block of Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Kennedy, all appointees of Republican presidents.
In all this, still resonating are the concluding words 13 years ago of now-retired Justice John Paul Stevens in the fateful Bush v. Gore decision that decided a presidency. That decision, he wrote, "can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision."
But Justice Stevens went on: "One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of his year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
This harsh appraisal of that momentous ruling that ushered in one of the most divisive administrations in history lingers over the court today, despite important changes in its composition. The majority's decision in the case was accompanied by the caveat that "our consideration is limited to the present circumstances." In other words, it was not to be taken as precedent altering the court's longtime deference to the states in resolving their own political matters. The "present circumstances" were that the election of a president was at stake and the Republican majority responded accordingly.
Justice Ginsburg, regarding this week's voting rights decision, made the same jurisdictional point. "Given a record replete with examples of denial or abridgement of a paramount federal right," she wrote, "the Court should have left the matter where it belongs: in Congress' bailiwick." She cited racial gerrymandering and other new wrinkles in need of congressional attention. That is an invitation to President Obama to jump in with more than words to demand restorative legislative action.
Meanwhile, the disturbing odor of partisanship still hangs over the court despite occasional breaks from it in its voting. A conservative majority that often rants against "judicial activism" still engages in it when its causes are served. Justice Kennedy emerges increasingly not only as the key swing vote but as a voice of moderation beyond the ideology that too often governs rulings of a supposedly blindfolded bench.Jules Witcover is a syndicated columnist and former long-time writer for The Baltimore Sun. His latest book is "Joe Biden: A Life of Trial and Redemption" (William Morrow). His email is email@example.com.
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