Many of us have grown up with an image of the Supreme Court as the guardian of our constitutional rights. We've thought of the court as the one branch of government where the rights of minorities, even unpopular ones, could be safeguarded from the incursions of a hostile or apathetic majority.
That image was formed during the period from the mid-1950s to the early 1970s, when the Supreme Court, and the rest of the federal judiciary, expanded the arena of liberty for blacks and other racial minorities, women, prisoners and those accused of crimes, and political dissenters of all stripes. During that period the court quite deliberately went about the business of interpreting the time-honored constitutional rights of free speech, privacy, and due process in ways that accounted for the changed circumstances of American life.
But in the Reagan era, all that is clearly changing. As Reagan appointees come to dominate the lower federal courts and exert increasing influence in the high court, the arena of liberty is again shrinking beneath our feet.
Ironically enough, it was while this year's Fourth of July festivities were gearing up that the Supreme Court handed down a decision that is a sign of things to come. On July 1 the court upheld the constitutionality of a Georgia law that made sodomy (homosexual or heterosexual) a crime punishable by up to 20 years in prison. The law had been challenged by a male homosexual arrested for breaking it in his own bedroom. In a 5-4 decision, the court chose to ignore the possible application of the law to heterosexuals and instead focused narrowly and harshly on the question of homosexual activity.
Justice Byron White's opinion ridiculed the plaintiffs claims to constitutional protection as "facetious at best" and justified the criminalizing of homosexual activity between consenting adults on the grounds that such laws have existed since ancient times. In a dissenting opinion, Justice Harry Blackmun wrote, "Depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our nation's history than tolerance of nonconformity could ever do."
Obviously any public discussion of sexuality is a very sensitive and inevitably controversial business. And the issue of homosexuality is even more so. That is especially true in the Christian community. The New Right preachers often rail against homosexuals in cruel and dehumanizing terms and seem to incite public homophobia for political ends. Meanwhile, at the other end of the spectrum, some in the religious community would have homosexuality affirmed as a valid Christian lifestyle. In between are those who take a more traditional view of biblical teachings while extending Christian compassion, pastoral sensitivity, and public justice toward persons with a homosexual orientation.
It is in the realm of public justice that the legal questions about homosexual activity must be considered. One can hold the most fundamentalist view of homosexuality and still consider it inappropriate for the state to regulate and penalize the private, consensual sexual activity of its adult citizens or criminalize persons on the basis of sexual orientation.
COMPASSION AND SENSITIVITY are going to be scarce commodities indeed in the new Rehnquist Court. William Rehnquist's rise to the position of chief justice in June is graphic evidence of how far America has moved in the last 15 years. When he was appointed to the court in 1971 (by Richard Nixon, of course), Rehnquist's conservative views were considered extreme to the point of eccentricity. Now we can reasonably expect that he'll have upwards of 25 years to stamp those views on the U.S. system of justice.
During his service in the Justice Department in the late '60s, Rehnquist distinguished himself as a point man in the Nixon administration's drive to quash domestic dissent. He called student protesters "the new barbarians" and plotted the legal strategy for the street-sweeping mass arrest of 10,000 people (many of them simple pedestrians) during the May Day 1971 anti-war demonstrations in Washington, D.C.
Much earlier, as a clerk to then-Supreme Court Justice Robert Jackson, Rehnquist wrote a 1952 memo to his boss arguing that segregated public schooling was "right and should be reaffirmed." In 1985 Rehnquist admitted that the 1954 Brown vs. Board of Education decision outlawing segregated schools was correct after all, but he still maintained that "there was a perfectly reasonable argument the other way."
During his service on the high court, Rehnquist has established himself as an implacable foe of affirmative action to right historical discrimination against racial minorities and women. And a study of Rehnquist's record on the bench by Harvard law professor David L. Shapiro found one of his guiding principles to be the notion that conflicts between the rights of an individual citizen and the government should generally be resolved against the individual.
Judge Antonin Scalia, Reagan's appointee to fill the vacancy created by Chief Justice Warren Burger's resignation, is, if anything, more extreme than his appointed chief. Conservative columnist William Safire, himself a former Nixon speechwriter, has called Scalia "the worst enemy of free speech in America today."
In a case involving homeless protesters sleeping across from the White House in Lafayette Park in a demonstration for public shelters, Scalia wrote an opinion saying that "when the Constitution said 'speech' it meant speech and not all forms of expression." Recently Scalia ruled that on-the-job sexual harassment was not a violation of federal laws against sex discrimination. In 1979 Scalia wrote, "I am, in short, opposed to racial affirmative action for reasons of both principle and practicality." And that's that.
Reagan's new appointments do not drastically alter the court's existing numerical balance on questions of liberty and equity. But both of Reagan's men are relatively young, as judges go, and both are exceptionally skilled, vigorous, and persuasive intellectual warriors. They will likely be able to draw some of the court's waffling moderates along with their rightward momentum. Also, four other judges on the court--all in either the moderate or liberal camps--are between 77 and 80 years of age, and 16 months are left in the Reagan term for possible additional appointments.
IT IS NOW CLEAR that individual liberties and human rights can no longer be taken for granted in America. If they won't be safeguarded by the Supreme Court, then they will have to again become the subject of grassroots struggle by people of conscience. As someone once said, "Freedom ain't free."
Danny Duncan Collum is a Sojourners contributing editor.
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