SUPREME COURT DISPATCH

By DAHLIA LITHWICK

This article originally appeared in Slate on June 28, 2000.

If you'd asked me after Monday's decision in Dickerson vs. United States, I'd have said the Rehnquist Court was trying to vaporize itself. Just as Francis Fukuyama predicted the End of History in the early '90s, and John Frieda announced the End of the Frizzies shortly thereafter, it looked like the court's decision to uphold the constitutionality of Miranda warnings signaled the End of Judicial Review. How else to interpret the perplexing 7-2 Rehnquist opinion finding both Congress and the court itself powerless to overturn court precedent? If the Dickerson view were correct, Plessy vs. Ferguson would still be good law. And the court's task would appear to be finishing up the last legal decisions ever -- smoothing the final cornices on the edifice of American Law -- while adhering blindly to the principle of stare decisis -- that precedent is irrevocable, even where wrongly decided.

The Final Day

But the last day of the 1999 term suggests that the End of Ideology is not upon us. Ideology, specifically religious ideology, is not just alive in the Supreme Court, it's kicking. And pounding its fists and wailing. It wants its mother. Or more correctly, its founding father. And what the cave-painters will fail to capture about the final day is the palpable disgust and fury on the part of Justices Thomas, Scalia, and Kennedy as they watch this so-called "moderate" court spin out of their control.

It's rare for a justice to read aloud from a dissent. It's deemed fractious. That three justices read lengthy ones on the last day is quite extraordinary. But that Scalia sounds near tears while Kennedy goes all red and quavery is inconceivable. As the justices announced their 10-minute dissents in Stenberg vs. Carharts -- the partial-birth abortion case -- and Hill vs. Colorado -- the abortion protest case -- the bench is shooting white sparks. None of the four so-called "liberal" justices read from their dissents, although Stevens' dissent in Boy Scouts vs. Dale, in which the court bounced the gay troop leader from the Boy Scout jamboree, is a scorcher. During the fireworks, Breyer, Ginsburg, Souter, and Stevens sat quietly on the bench, mostly gazing at their hands as their brethren castigated them for being "indefensible, illogical, and illegitimate" (Thomas); for "stacking the deck" in favor of "aggressively pro-abortion novelties" (Scalia); and for "abdication of our responsibility" (Kennedy). 

Yet while the Blinking Four endured the vitriol, their silence seemed to shout: "Yo! There are only four of us. And we still have the majority. How did this happen?"

States' Rights: Friend Or Foe?

they remain conservative. Woe may still betide any Congress attempting to regulate non-economic, non-interstate activity under the Commerce Clause. The Violence Against Women Act was invalidated in Brzonkala vs. Morrison, despite voluminous congressional findings that rape affects interstate commerce. FDA efforts to regulate smoking fared no better -- they were struck down as shameless congressional overreaching in FDA vs. Brown & Williamson. But, to paraphrase one of my favorite Washington "It" Boys -- former acting Solicitor General Walter Dellinger -- before you mist up over the court's sweet deference to states' rights, you may want to reflect on the possibility that this court doesn't love the states. It just hates Congress more. And all the cinnamon-scented rhetoric about federalism and state autonomy evaporated pretty quickly when the autonomous citizens of Massachusetts tried to set their own foreign policy toward Burma in Natsios vs. National Foreign Trade Council, or when the state of Nebraska voted 99-1 in favor of banning partial-birth abortion as they did in Stenberg vs. Carhart. The states morph from autonomous agents of democracy to backward boneheads pretty readily.

So, if this court isn't just zealously protecting the states from federal overreaching, what has it been up to this term? Well, states can't act as a meta-Congress as they did in Natsios. And Congress cannot micromanage states as they did in Brzonkala. And Congress can't act as meta-court, as it did with Miranda in Dickerson. The both-ends-against-the-middle game ensures that the states and Congress are limited to saying "thank you" while the court, as it's done since Marbury vs. Madison, plays meta-Medici and hoards the most rocking power of all: the power to allocate power. And if the holding in Dickerson amounts to nothing more than a chest-thumping chief justice insisting that nobody gets to emasculate his court other than, well, his court, at least he's consistent.

The Abortion Decisions

But what to do with the abortion decisions? The holding in Stenberg is more far-reaching than anything foreshadowed at oral argument. The court could have gone gutless and limited itself to finding the Nebraska abortion overbroad, as it sweeps common dilation and extractions (D&Es) under its ban on D&Xs (intact dilation and extraction). As it did in Troxel (the grandparents' rights case), the court could have limited itself to invalidating the badly drafted Nebraska statute and left the big question about whether D&Xs are constitutionally protected for another day. But the five-justice majority, led by Breyer, boldly went today where no court has gone and found that their 1992 decision in Planned Parenthood vs. Casey requires statutes limiting abortion to include an exception for the health of the mother. Since the Nebraska statute provides an exception to the partial-birth ban only where the life of the mother is at risk, the majority invalidated the ban as creating an "undue burden" on a woman's right to choose. Since an exception based on a woman's health would leave each and every D&X decision to the abortion doctor's discretion, the health exception would swallow the rule -- which is why neither the Nebraska statute nor the two congressional attempts to ban partial-birth abortion contain health-of-the-mother exceptions.

Justice Thomas' dissent, read in his great sonorous voice, warns that the holding will eviscerate all the other 29 states' partial-birth abortion bans, as well as the democratic processes that led to them. And on the courthouse after the session, pro-life spokesmen promise that Al Gore will lose the election on this issue alone. A statement handed to me by a lackey for House Majority Whip Tom DeLay trashes the "activist Judiciary" for their "contrived legal theories" of which he was unaware when this statement was prepared.

The Bubble Bath

Surprisingly, the really high-octane tantrums came in response to Hill vs. Colorado, the Colorado "bubble" case. Certainly both Scalia and Kennedy use their dissents in Hill to complain about the outcome in Stenberg. A surprising 6-3 majority -- including the new, "If Ya Can't Beat 'Em, Join 'Em" Rehnquist, uphold the constitutionality of Colorado's 8-foot bubble of privacy proscribing unwanted speech outside a health facility. Delivering the opinion of the court, Justice Stevens invents an astonishing new right -- the right to "be let alone." For this proposition he cites a Brandeis dissent in a 1928 case. Now I confess that the unsolicited AT&T calls are starting to get to me. But the notion that the right to be free from harassment is not only constitutional but somehow outweighs the right to free speech (you know -- the one enshrined in the First Amendment) is breathtaking. 

Justice Scalia was anything but breathless as he blistered the majority for upholding an overbroad, content-based, viewpoint-based statute simply because it prohibits speech with which they disagree. He blasted them for creating a prophylactic, bright line rule. Scalia went on for over 10 minutes, listing the religious and moral imperatives driving sidewalk counselors outside clinics he calls the "forum of last resort." He let us in on how he feels about Stenberg by describing abortion in terms of a "live and kicking child, part way out of the womb."

Speaking of alive and kicking, Justice Kennedy's dissent from Hill literally puts me in fear for his heart. It is broken, and his regret appears to be over nothing so much as his deciding vote in Casey. Having voted in a 5-4 bloc to preserve a woman's right to choose, he stops shy of disavowing his position but nevertheless accused the court of "turning its back" on the careful moral balance for which he had voted in Casey. He closed with disgust at the court's denial of pro-life pamphleteers having the "opportunity to offer a fellow citizen ... a handheld paper seeking to reach a higher law."

A higher law? Kennedy joined the dissenters in Stenberg, suggesting that his own regret may well be his failure to ban abortion altogether back in 1992 when he had the chance.

is like the Hill decision about abortion protesters in that it balances known rights against blurry rights and lets the blurry rights prevail. In Hill, the "right" to be let alone trumps the right to speak. In Dale, the right to "expressive association" trumps the right to be free from discrimination in public accommodations. The decision in Mitchell vs. Helms allows taxpayers to put computers into Catholic schools without running afoul of the Establishment Clause.

Add to the above last week's decision in Santa Fe vs. Doe -- the case prohibiting student prayer before football games -- and the picture is complete. The Rehnquist Court of the 1999 term stands for states' rights, preserving its own power, and religious hysteria in every shape and form.

Was it me who once said, "Religion is the race of the millennium"? I doubt it. But Jonathan Swift could have been talking of this court when he said, "We have just enough religion to make us hate, but not enough to make us love one another."

Have a nice summer, court fans. I'm off to Colorado to get fitted for my bubble.

Dahlia Lithwick, a senior Editor at Writ, covers the Supreme Court for Slate.

Reprinted on Findlaw in Writ -- June 29, 2000.

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