DEMONIC JUSTICE:

Conciliating Hatred (Steven Smith, First Things, June/July 2004)

[I]n the Casey joint opinion [Kennedy] eventually joined O’Connor and Justice David Souter in reaffirming Roe’s “central holding”—with the expressed purpose, or at least the hope, of bringing the nation together on this “intensely divisive controversy.” These Justices portrayed the Court’s role as one of “call[ing] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”...

As you will learn to your chagrin if you have the misfortune of being required to teach these cases, the Court’s affirmative action decisions were plainly not about logic—or even about law in any serious sense. They were political compromises calculated to placate the major interested parties, and to avoid the divisiveness that the Court feared would ensue if affirmative action were ended....

The description in the Casey opinion of the Court as “call[ing] the contending sides of a national controversy to end their national division” struck some observers as grandiose, bordering on delusional.... Moreover, the leading precedent for this self-portrayal is ominous. In Dred Scott v. Sanford (1857), the Supreme Court similarly attempted to call the contending sides of a national controversy to end their national division: it attempted to settle the issue of slavery once and for all. Four years later the nation was engaged in a civil war that would wreak death and destruction on a horrifying scale....

[A] favored strategy seems to be emerging: we might call it the “evil-motives strategy.”... If the Justices ... want to invalidate a divisive measure, they can find the stated purpose to be merely a cover for some more nefarious motive—for racial or religious bigotry, or “animus,” or “a bare desire to harm a politically unpopular group” (quoting now from the 1996 decision in Romer v. Evans). In essence, the measure is struck down for being a product of hatred....

In Romer, ... Justice Kennedy’s majority opinion described a black-and-white world in which supporters of the measure were acting simply from “animus,” or from a “bare desire to harm a politically unpopular group.” And last term, in Lawrence v. Texas, Kennedy again wrote for the Court to declare that a Texas law prohibiting homosexual sodomy was like Amendment 2 in being “born of animosity toward the class of persons affected.”...

[T]he Court’s approach not only countenances but indeed mandates a discourse of demonization in which adversaries are required to litigate their differences by asserting and withstanding ascriptions of bigotry, intolerance, hatred, and “animus.” In traditional logic and rhetoric, the so-called ad hominem argument is typically treated as a certifiable fallacy. But if evil motives become the test of constitutionality, then disputants are not merely authorized but indeed required to trade in just that sort of argument. Robert Nagel notes that a good deal of modern constitutional jurisprudence amounts to little more than thinly veiled exercises in name-calling ...

Probably the principal device for reconciling [the ennobling and destructive aspects of our moral aspirations] consists of the venerable admonition to “hate the sin but love the sinner.”...

Tragically, the Supreme Court’s evil-motives jurisprudence attempts to negate that principle, or to foreclose any resort to it. Moral disapproval of conduct, such as homosexual acts, is equated with hostility toward and hatred of persons who engage in that conduct, and even of persons with a proclivity to engage in it, whether they actually do so or not.

This equation is nowhere clearer than in Justice O’Connor’s concurring opinion in Lawrence v. Texas. Moral disapproval of conduct, O’Connor there maintains, amounts to moral disapproval of the class or group with which that conduct is “closely correlated.” And “[m]oral disapproval of this group” is in turn tantamount for legal purposes to “a bare desire to harm the group.”...

Under the weight of these morality-flattening equivalences, any possibility of hating the sin but loving the sinner is crushed. On the contrary, disapproval of what you regard as sin amounts to (and indeed is simply the expression of) hatred of the sinners.

The task of finding compromise positions that can conciliate two groups that disagree is the natural one of legislators, who are electorally accountable to different segments of society and therefore represent and become intimately familiar with a variety of views. Having seized from legislators responsibility for vast areas of law, the Court now finds itself forced to play the role of a legislature by finding acceptable compromises. But with no accountability to others, a busy schedule and a much smaller body with little time to discuss issues with the people, Justices are hardly likely to take time to understand the views they are 'reconciling.' Rather, they are likely to rule out of their own prejudices. To get others to accept their arbitrary decisions, they are tempted to call not just upon the authority of the court, but also upon rhetorical tactics that help beat others into submission. Demonization of the losing party is therefore a natural consequence of judicial authoritarianism.

Judging by the last decade of rulings, the personal prejudices of the Court majority seem to be less liberal or conservative than anti-Christian and secular. Smith is right that the Court is "flattening" traditional Christian principles like "hate the sin, love the sinner" -- but the Court may regard that as a feature, not a bug.

Posted by Paul Jaminet at May 23, 2004 4:55 PM