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Justices should make up their minds


THE CONSTITUTION is in a peculiar state of flux. First, in a flurry of flag-waving fervor, just in time for the July 4 recess, the House hurriedly passed an anti-flag-burning amendment designed to overturn a 1989 Supreme Court decision.

Then, the Supreme Court reversed itself in two new 5-to-4 decisions that are anathema to liberals, outlawing race-based redistricting in Georgia and forbidding a Virginia state university to discriminate against student publications that are religious in content.

The reaction of liberals has verged on hysteria. "This court apparently is bent on dismantling civil rights," said Laughlin McDonald of the American Civil Liberties Union.

Remember a few weeks ago when we were all called on to condemn "overheated" (read: right-wing) rhetoric, the irresponsible voices of hate? Well, that was then, this is now: The once-and-future presidential candidate Jesse Jackson unleashed a particularly low and vicious attack on Justice Clarence Thomas for daring to vote with his conscience instead of his skin, calling his decision "a brutally violent act," that "in effect, stabbed Dr. [Martin Luther] King . . . paving the way back toward slavery."

Pretty strong words for a decision that merely ends the new practice, instigated by an unholy alliance of black and GOP leaders, of segregating black and Latino voters in archly drawn safe districts, generally freeing the surrounding white districts to vote the straight Republican line. The result is a number of weirdly drawn gerrymanders, such as Rep. Nydia Velasquez's famous "Bullwinkle" district, so called because of the moose-head shape created as it snakes some 75 miles in and out of minority neighborhoods in Brooklyn and Queens -- even darting across the East River to snatch up some Manhattan Latinos.

Though these decisions are treated as conservative victories, I'm not so sure.

In the race case, Justice Anthony Kennedy's superficially sweeping opinion ruled that state officials could not use race as the "predominant" factor in carving up electoral districts. But it was an opinion that raised as many questions as it answered: For example, can race play a partial role, and if so, how can officials tell when ethnic motives impermissibly predominate? To add to the confusion, the court upheld without comment California's 1992 redistricting plan that created nine new majority black and Hispanic districts, proving some race-conscious redistricting may well pass the court's muster. The court also announced plans to review two new redistricting challenges, in Texas and North Carolina, next term. So the court's ruling really makes only one thing clear: A whole lot of congressional elections are going to end up in the courts.

In the religion case, Justice Sandra Day O'Connor went out of her way to say no one should draw any conclusions from her decision. When does the desire to separate church and state cross the line into unconstitutional discrimination against religious speech? That, Justice O'Connor cautioned in her concurring opinion, is a difficult issue that "does not admit of categorical answers, nor should any be inferred from the court's decision today."

This is an extraordinary admission for a Supreme Court justice to make. The law works by categories, so that in theory an individual or a local official should be able to tell in advance, or at least make a good guess, whether his action is constitutionally permissible. But on issues of separation of church and state, Justice O'Connor says in effect, if you want to know, ask me.

"The Constitution means what Kennedy and O'Connor say it means," said Georgetown University law professor Mark Tushnet.

The real result of Justices Kennedy's and O'Connor's indecision will be an invitation to endless litigation -- a guarantee that the court will retain its increasing tendency to intervene constantly in the normal legislative activity of state and local governments.

The Supreme Court is supposed to be the least dangerous branch of government. But instead, these decisions confirm, the nine black-robed justices remain the most powerful figures in domestic American politics. After 30 years of reshaping American society, the only rebuke the court has received through the political process is on the one little ol' symbolic issue: flag burning.

So the irony is that even as it turns to the right, the court, which is supposed to defer to the intent of the Framers, is increasingly apt to reserve power to govern for itself.

Maggie Gallagher is a syndicated columnist.

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