The Court’s Ambivalence 

As others observe elsewhere in this issue, our nation’s policy is advancing by degrees not just into a different future, but, it would seem, into two different futures, mutually exclusive in their intent.

The most obvious case in point resides with the Supreme Court, which in consecutive days in the last fortnight has laid waste to pretty much everybody’s conventional stereotypes. Was the court “conservative” or even reactionary when it cast into the litter bin of history Sections 4 and 5 of the 1965 Voting Rights Act? Was it “liberal” when, the very next day, it found in favor of plaintiffs in cases challenging Proposition 8 in California and the Defense of Marriage Act nationally?

There may be citizens who are hailing both decisions and others who are horrified by both, but, if so, we haven’t seen them yet. What seems to be the fact is that the court, like the nation, is feeling its way along with, as Bob Dylan put it five decades ago, “no direction home.”

The fact is that both judgments were 5-4 decisions which, taken together, say something about the essential ambivalence of the time. But let us do some hair-splitting of our own, by way of making sense of it all. The point of the voting rights decision, on the face of what the decision both said and implied, was that in those deep South states where the franchise was at issue for African Americans, there is no longer any problem worth taking advance precautions over.

Really? Then the court is agreeing with the American Legislative Exchange Council, the right-wing pressure group which has churned out a one-size-fits-all law requiring photo IDs for voting and sold it to the conservative legislatures in a growing number of states. So it’s “fraud” that’s being targeted and not poor folks, black folks, and older folks, the groups most likely to be without photo IDs. Sure.

As for the court’s decisions on the rights of gays to marry and enjoy the ancillary benefits of wedlock already enjoyed by heterosexuals? That judgment, which extends and protects the rights of an often beleaguered minority rather than backing off, as with voting rights, into a laissez-faire attitude, would seem to be saying something totally different.

Maybe the court is appropriating the verdict of history — contending that black voters have won their battle (or had ample time to), while members of the LGBT community still need judicial help. In which case, there are many, on both sides of both issues, who would disagree.

Or maybe the court is merely trying to find the ever-shifting seam between the prerogatives of state law and the overriding sense of the Constitution. That’s what most Supreme Court decisions do, and it may be the case that not only is Joe Public confused about where that seam exists these days, but so are legal authorities.

Or maybe, all things considered, it’s no more than a standoff, just another face of the country’s omnipresent political gridlock.



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