Supreme Liberalism

Much of the abundant commentary that followed the U.S. Supreme Court’s dramatic rulings on affirmative action and gay sodomy has contemplated a leftward tilt by an otherwise conservative court. True, most progressives on the left hailed the two decisions, and hard right conservatives were left fulminating.

But a different view is that the court has not so much turned left as it has veered “liberal” in the true sense of the word. Liberalism is many things (leaving aside the derogatory “L-word” mud that American conservatives have grown fond of throwing), but can broadly be summarized as adherence to principles of social democracy, bedrock individual rights and freedom to dissent from social and political orthodoxy.

The Supreme Court’s recent opinions project a contractual strain of liberalism à la classical social contract theory (Locke, Hobbes, Rousseau and fellow travelers): Individuals pursue liberty through self-interest, but “each person’s ability to effectively pursue her interests is enhanced by a framework of norms that structure social life and divide the fruits of social cooperation,” as the Stanford Encyclopedia of Philosophy puts it.

In plainer language, John F. Kennedy in a speech in 1960 defined a liberal as “someone who looks ahead and not behind, someone who welcomes new ideas without rigid reactions, someone who cares about the welfare of the people—their health, their housing, their schools, their jobs, their civil rights and their civil liberties.” Liberalism, he said, is “a faith in man’s ability through the experiences of his reason and judgment to increase for himself and his fellow men the amount of justice and freedom and brotherhood which all human life deserves.”

These contours of liberalism are the common threads that run through the high court’s recent decisions. To see this, look not just at the logic of the rulings that prevailed, but also at what those who dislike these rulings have to say, revealing alarmingly anti-liberal sensibilities.

In the affirmative action decision, Justice Sandra Day O’Connor wrote that “in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” From a conservative justice, this is an intrinsically liberal notion (in the classical sense)—that the arrangements of key social institutions are fundamental to the preservation of liberty interests.

In his passionate dissent, Justice Clarence Thomas rejected the idea that access to economic, social or political power has anything to do with such arrangements: “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.” Of course this is true—so long as there is equal access to preparative resources in a society free of racial animus. Turning a blind eye to the real American landscape of unequal opportunity, Thomas wrote callously that “if the lack of proportional racial representation among our leaders is not caused by societal discrimination, then ‘fixing’ it is even less of a pressing public necessity.”

Affirmative action raises thorny questions about liberalism and the social contract—how to balance individual rights against a larger framework that will advance equal opportunity to, as Thomas put it, “achieve.” The Texas sodomy case, on the other hand, was not about the right to become, but about the right to be left alone.

In the Texas case, the court seized an opportunity to safeguard justice and freedom in private, consensual relations. Looking forward (to paraphrase JFK), it saw homosexuality as woven into the fabric of society and deserving of civil liberties protection. Critics of the ruling would privilege morality over liberty, but fail to see that a right to engage in private intimacy that is consensual and harms no outside party is itself a moral position. And so Justice Antonin Scalia’s vitriolic dissent conveyed not just legal friction but a toxic (and anti-liberal) intolerance for morality that fails to live up to his parochial standards.

And don’t underestimate how far that parochialism could go: Some on the right would cheerfully criminalize any consensual intimacy outside of marriage. A brief in the sodomy case submitted by two influential conservative groups argued that “there is no fundamental right to fornication, adultery, homosexual sexual acts or to any other sexual acts apart from marriage.... States may discourage the “evils”...of sexual acts outside of marriage by means up to and including criminal prohibition.”

Kvetching for the National Review, David Frum fretted that “every form of distinction now drawn between homosexuality and heterosexuality—from the ban on avowed homosexuality in the military to the non-existence of same-sex marriage—has overnight become constitutionally suspect.” To which liberalism replies: quite right, as well it should be. Future courts might conceivably allow differences in law by sexual orientation on grounds of compelling public interest, but the guiding assumptions (as with race, gender, religion, etc.) should be liberty and equal protection, not moral opprobrium.