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A surprisingly diverse court

Published Sep. 1, 2005

The following editorial appeared in Thursday's Washington Post:

Justice Sandra Day O'Connor writes paeans to diversity in higher education. Chief Justice William H. Rehnquist, sounding like a sensitive New Age guy, upholds the federal power to impose family leave rights on states in order to protect women in the workforce. Justice Anthony M. Kennedy insists upon the right of gays "to respect for their private lives." These are the dangerous ideologues of the extremist Rehnquist court?

The current Supreme Court is often caricatured as a body torn between a five-member majority itching to remake American law in a conservative mold and a four-member liberal flank struggling to restrain that majority _ and the court has at times done its part to encourage that view.

The caricature has driven the war over judicial nominations, with each political camp asserting that doom lies only one nomination away. But this caricature has never been an entirely convincing account of the court, as the ideology-bending term it just completed amply testifies. It is quite difficult to see in the court's recent output any ideology running amok _ much less Armageddon just around the corner. Instead there was a motley and shifting collection of coalitions that yielded results few would have predicted.

The court's highest-profile cases were by and large big defeats for its strongest conservatives. The justices this term did not just uphold educational affirmative action and strike down sodomy laws, they did both with surprising gusto. They also took a step to clarify that their interest in a states' rights revival has limits and is not a revolution in the balance of power between the federal government and the states. There were two important death-penalty decisions, one insisting that lower courts examine credible claims that prosecutors improperly excluded blacks from juries, the other requiring defense lawyers to investigate and present evidence that might mitigate a jury's inclination to impose death.

The court limited the government's ability to forcibly medicate pretrial detainees for the sole purpose of rendering them competent to stand trial. And it issued an important decision protecting from a constitutional property rights challenge the mechanism by which legal services for the poor get funded.

But the court was by no means a simple engine of liberal social change. It upheld California's "three strikes and you're out" sentencing law, for example, and it turned back challenges to state sex-offender registries. It permitted mandatory detention of criminal aliens whose deportation the government is pursuing. And it upheld a federal law requiring libraries to use smut-filtering software as a condition of receiving federal subsidies for Internet connections.

The advantage of the ideological diversity the court has demonstrated is that its majorities can draw from a variety of intellectual currents that offer useful strategies for interpreting the Constitution. This court still has its pathologies: a certain grandiosity, and an imperial attitude toward the other branches of government. But with the court's current composition _ which now appears likely to remain unchanged for at least another year _ a majority for any kind of radical conservatism seems a fading risk.

This is a generally conservative court, but its tendencies do not translate neatly or automatically into any particular favored outcome of political conservatives.

Washington Post