I’m going on vacation for a week at the Delaware shore. I’ll be doing little, if any blogging. Before I take off, I’m going to unleash one last rant regarding the Supreme Court.
The decisions in the Michigan race preferences cases, and all that went before them, pretty much capture the approach of the Powell/O’Connor Court to most of the biggest issues it has dealt with. The all too familiar pattern consists of years of “approach-avoidance” to the task of killing off unconstitutional or extra-constitutional doctrines and practices, followed by the final act of avoidance, followed by intimations that the final act may not be final after all. In the case of preferences, the court waffled, issued confusing decisions, sent out conflicting signals, and tried to split the difference for decades. Finally, when there were no more differences to split, the court failed to pull the trigger and upheld racial discrimination by the govenment. Even then, however, the court tried to pretend it was still splitting differences by reaching different results in functionally identical cases and issuing meaningless language about what it might do 25 years from now.
The court has done something similar in the area of criminal procedure with its approach to Miranda. As I explained here, in a piece called the Miranda waltz, the court has waffled back and forth on the status of the Miranda warning. It appeared finally to have resolved the issue a few terms ago, but now it’s looking for more differences to split. In his book First Among Equals, Kenneth Starr shows how something like this pattern has been repeated with respect to various First Amendment issues, abortion, racial gerrymandering, etc.
The Powell/O’Connor court, collectively, knows that race-based admissions violate the highest constitutional principles (hence the need to say they won’t be tolerated indefinitely). It knows that criminals shouldn’t go free merely because the Miranda warning wasn’t read, if the totality of the evidence shows that the confession was voluntary (hence the latest revisiting of this issue). It knows that Roe v. Wade was incorrectly decided. But it just can’t pull the trigger.
Why not? Some might cite the way lawyers are trained — to split differences, to distinguish the indistinguishable, to argue persuasively that white is gray and plausibly that white is black. Others might cite our culture of fudging and irresolution. I think the latter explanation comes closer, only I would speak more plainly and call it lack of courage. When push comes to shove, the Powells and the O’Connors can’t do away with Miranda because it’s “part of the legal landscape” and a fixture on television. When push comes to shove the Powells and the O’Connors can’t do away with quotas because they too are part of the landscape, and these judges don’t want to be the ones responsible for a reduction in the number of blacks who get to attend elite institutions.
Some suggest that O’Connor and Powell are the true conservatives when they tread so cautiously. This is part of what Krauthammer was saying when he lauded the Michigan decisions in the link I posted earlier today. In fact, Krauthammer also lauded the court’s decision not to overturn Miranda. But this is conservatism in the bad old sense (the Austrian sense, really). Preserve the status quo, uphold states rights, stick with stare decisis, find any excuse at all to do nothing about race discrimination by the government, about the grant of imaginary rights to abort human life, about the release of criminals who confessed voluntarily, and whatever else liberals may have dumped on the “legal landscape.”
I’m out of here. Maybe the beach will improve my mood.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill