Above the fray, but part of it

IT IS lucky for the nine justices of America’s Supreme Court that they need not seek re-election. In the last days of their latest term they were denounced from the left for one ruling, which narrowed the scope of a 1965 law against racist barriers to voting, and from the right for a second, which struck down federal curbs on the rights of same-sex married couples.

John Lewis, a black Democrat who marched with Martin Luther King, accused the court of sticking “a dagger through the heart” of the Voting Rights Act. Michele Bachmann, a vocal Republican, charged the court with trying to dismantle marriage, a creation from “the hand of God”.

Dissenting members of the court sounded no less cross. Ruth Bader Ginsburg, at 80 the court’s combative liberal conscience, accused her colleagues of “hubris” in suggesting that racism has faded as a menace, notably in the Deep South—a suggestion, she noted, that involved ignoring a 2006 judgment to the contrary by Congress. At the conservative end of the court, Antonin Scalia accused his peers of plotting a “black-robed supremacy” in striking down the Defence of Marriage Act, a law passed by Congress in 1996 to grant primacy to heterosexual marriage and to minimise the legal import of state-devised gay marriages.

Under its chief justice, John Roberts—a staunch small-government conservative appointed by George W. Bush—this is a highly polarised court, and one with a clear 5-4 conservative majority, to boot. But partisan labels such as left-wing and right-wing are not much help when assessing this Supreme Court, or the spate of historic rulings that it issued in the usual end-of-term rush before the justices headed off for their summer breaks (conferences, the odd opera festival, a spot of teaching in some agreeable foreign spot). A single instinct binds together several big and seemingly incompatible rulings handed down by the Supreme Court at the end of its term. That instinct touches on traditional arguments about the competing rights of the federal government versus the 50 states, but is larger than a discussion of states’ rights. Put simply, the court showed a deep suspicion of attempts to use the law to place a particular group or institution on a pedestal, granting it special privileges to shield it from attack or competition. To give this instinct a single label, the court rejected paternalism as a way of organising American society.

The Supreme Court has not always opposed paternalism. For nearly two centuries, as Justice Thurgood Marshall, its first black member, noted in 1978, the court found ways to reconcile the constitution with “ingenious and pervasive” forms of discrimination against black Americans, often dressed up as concern for their welfare. In a 1973 sex-discrimination case another justice, William Brennan, lamented America’s long history of keeping women down, all too often in the name of a paternalism which, he argued, had in practice “put women not on a pedestal but in a cage”.

In modern American politics all manner of paternalistic impulses live on—and just to complicate matters, thrive on both the right and the left. This term the Supreme Court ruled on three big cases involving race. All in some sense challenged a long-standing, often left-led consensus that blacks and other long-oppressed minorities continue to require unequal protections, in the name of a broader equality. In the voting-rights case, the majority found that America had moved on since the dark and violent days of 1965, yet rules kept in place by Congress seemed to ignore such changes, leaving in place special federal oversight for former hotbeds of discrimination. While leaving in place nationwide rules against racist barriers to voting, the court shifted the burden of proof to those complaining of discrimination.

In an affirmative-action case involving the University of Texas at Austin, the court upheld the idea that a racially diverse campus is of benefit to all, but strongly nudged universities to seek colour-blind ways to achieve such mixing. A third case, a sad battle over an adopted toddler whose biological father is part-Cherokee Indian, in theory turned on a narrow reading of custody rules. But the court’s opinion made clear a broader dislike of a sweeping 1978 law, passed by Congress to discourage the removal of Indian children from their tribes. The opinion repeatedly noted that the baby in question was only 3/256ths Cherokee, and suggested that special treatment of Indian children might put certain vulnerable youngsters at a “great disadvantage”.

We are the law

In contrast, in striking down the Defence of Marriage Act, the majority was—in effect—taking issue with a paternalism of the right. The author of the court’s opinion was Anthony Kennedy, a Republican appointee with an independent streak who—to his ill-concealed delight—often acts as a swing vote. He chided Congress for intruding on the rights of states to define marriage, but also for attempting to put traditional marriage on a pedestal at all, with the stated aim of “protecting the traditional moral teachings reflected in heterosexual-only marriage laws”. With relish, Justice Kennedy tore into Congress for ignoring both the constitution’s stress on equality and the federalist system’s insight that different communities have different values, and that these evolve.

The Supreme Court’s suspicion of paternalism belongs to a long national tradition, to be sure: America was born of revolution and built around self-government. The court’s big end-of-term rulings defy easy partisan labelling. But Justices Ginsburg and Scalia—who seldom agree on much—are both right in sensing what is at stake, politically. This is a Supreme Court which does not hide its disdain for Congress. This is a supremely confident court. As a result, this has been a term of unusual confrontation and drama. Expect more to follow.

^{Economist.com/blogs/lexington}