Conservative court, The

Coulter, Ann

Reviewing the Supreme Court term that ended last month, New York Times court reporter Linda Greenhouse wrote: "Chief Justice Rehnquist's position at the center of the court is itself a measure of how conservative the court has become."

In reflecting on "how conservative the court has become" I began thinking about the court's recent ruling in Boy Scouts of America v. Dale. A tolerant and welcoming group, the Boy Scouts have long excluded only the "three Gs"--girls, gays and the Godless. Naturally, this being America, girls, gays and the Godless have repeatedly brought suit demanding that the Boy Scouts admit them.

Only Five Justices

Until last bear when the New Jersey Supreme Court ruled that the Boy Scouts must permit homosexual scout leaders, every state and federal court to consider the vanous challenges to the Boy Scouts' membership requirements has ruled for the Scouts. Even the California Supreme Court-more commonly cited for comic effect-- ruled unanimously that the Boy Scouts could exclude homosexuals. (Curran v. Mt. Diablo Council of Boy Scouts of America.)

I hate to be a sore winner, and it has to be said, the United States Supreme Court did reverse Christie Todd Whitman's court. So for now at least the Boy Scouts have a freedom of association right to exclude gays. But only five justices so ruled. Four sitting members of the current Supreme Court would have decreed that the Boy Scouts can be required to make troop leaders out of open, out-of the-closet homosexuals.

If one justice in the majority had gone the other way, the next lawsuit would have been brought by a girl, and under the ruling in Dale-- well, there would be no Boy Scouts, anymore. But at least we won that one, albeit with four justices dissenting on the grounds that, essentially, only hate groups have freedom of association rights.

Fork in Brains

In another of the "conservative" court's rulings this term, a majority held that suctioning the brains out of a half-born fetus is a constitutional right. In Stenberg v. Carhart, the court ruled that states cannot prohibit partial-birth abortion (or what the New York Times calls "what its opponents call partial-birth abortion").

Just to put this in perspective, in a recent Los Angeles Times poll, two-thirds of respondents and over 70% of women thought all abortions after the first trimester should be completely banned. Vast majorities of Americans oppose the killing of a half-born fetus, including politicians who are otherwise copacetic with baby-killing, such as Sen. Daniel Patrick Moynihan (D.-N.Y.) and Sen. Tom Daschle (D.-S.D.).

Of course, if the Constitution actually mentioned something to the effect that sucking a baby's brains out is a constitutional right, it wouldn't matter what the polls say. Not to be a stickler, but the Constitution does not say that. The right to abortion is based on an imaginary (doesn't exist) right to privacy and imaginary rights are easier to swallow if they are consistent with the country's traditions and practices, not to say normal human impulses.

The apocryphal "right to privacy" was first invented by five justices on the Supreme Court in the 1965 case, Griswold v. Connecticut. That case held that married coupies have a "privacy" right to purchase contraceptives. Though the majority initially disagreed on how to wrest such a "privacy" right from the Constitution, eventually they fixated on the genuine constitutional rights against unreasonable searches and seizures, and against the taking of private property without compensation, among others, as the source of the nonexistent right to "privacy."

If a general right to "privacy" doesn't leap out at you from those other rights, you're not the only one. As Justice Hugo Black said in dissent, "[T]he average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone."

But importantly the court said that the right of married couples to contraception constituted a "right of privacy older than the Bill of Rights-older than our political parties, older than our school system." Of course, the Constitution still didn't say anything about contraception. But all the blather about "sacred" bonds of marriage sounded portentous enough to be plausible.

Except that since there was no "right to privacy" there could be no way to define or limit it and, before you knew it, the exalted "right to privacy" included the right to kill unborn babies. That didn't sound so plausible anymore.

Indeed, the invented right to privacy as interpreted in Roe v. Wade overuled the laws of all 50 states, most of which criminalized abortion at the time.

Today-still-30 years later, support for that decision is at an all-time low, from an anemic 56% in 1991 to 43% this year.

This despite the rather hefty leg-up Roe gave the proabortion forces by declaring abortion not merely acceptable, but a full-blown constitutional right. As prohibitionists learned wide the 21st Amendment and abolitionists learned with the Civil War, once something has been legal for awhile, it's hard to persuade people to give it up.

Moreover, at least Roe gave the states authority to ban abortion in the third trimester. This current "conservative" Supreme Court has managed to locate a constitutional right to suck the brains out of a baby who has made it past the third trimester right into the birth canal.

With its ruling on partial-birth abortion this term, it can now be said that in just three decades the invented right of "privacy" transmogrified from the right of married couples to obtain contraceptives to the right to stick a fork in a baby's head.

It was bad enough when the Supreme Court hallucinated new constitutional rights to minor and relatively noncontroversial things, such as contraceptives for married couples. The current "conservative" Supreme Court is hallucinating constitutional rights to macabre, blood-curdling es opposed by a huge majority of Americans.

'Right to Be Left Alone'

This term, the "conservative" court also suddenly discovered a right to be left alone--or rather to be left alone from pro-lifers. In Hill v. Colorado, the court upheld a state law suppressing the 1st Amendment rights of abortion opponents outside abortion clinics.

Vagrants still have 1st Amendment rights to harass defenseless passers-by. Strikers still have rights to molest strike breakers. Animal rights fanatics still have rights to stand outside CBS studios screeching about game show contestants eating a rat on "Survivor."

The novel "right to be left alone" trumps the 1st Amendment rights only of pro-lifers.

So when the New York Times refers to the current Supreme Court as "conservative," what it means is this: There are two Supreme Court justices who are not manifestly crazy. There are three justices who have occasional bouts of sanity. And there are four who would be discovering constitutional rights to suck the brains out of people on a crowded subway-if only they could get that fifth vote.

Someday I'd like to see a true rightwing court just to show the New York Times what "conservative" judicial activism would really look like. To correspond to the "living Constitution" wielded by liberal jurists, the court would have to start discovering constitutional rights to withhold taxes, discriminate against homosexuals, and suck the brains out of Democrats-all in the penumbras you understand.

It would be a lot of fun for a few months, and then the Justices could admit it was just a joke and overrule it all. We could go back to living under a Constitution and not a tyranny of disassociated lunatics, and best of all, we probably wouldn't hear so much about judicial restraint's being a partisan "conservative" issue anymore.

Copyright Human Events Publishing, Inc. Jul 21, 2000
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