Jewish World Review June 26, 2013/ 18 Tamuz, 5773
A murk called law
By Paul Greenberg
One of the great justices of the
Whether the country will ever again see his like on the
The general run of mediocrities who make up the rest of the court would seem dedicated above all to avoiding clarity -- and therefore finality, the one quality that makes such a court indispensable in a constitutional system.
On issue after issue this term, case after case, the court's decisions rang clear as a muffled bell. A number of its rulings left legal scholars and mere newspaper columnists, too, scratching our heads looking for conclusions that weren't there.
The bright, shining exception to this dismal rule was the court's decision to overturn the Voting Rights Act of 1965, or rather bring it up to date. That decision was testimony not to how badly the law had worked but how well. Because it's evident, or should be, that the Voting Rights Act has changed the complexion, literally, of the American electorate. It did so by finally recognizing the long-ignored right of American citizens to vote in the states of the Old Confederacy. It was about time this long after The War.
To reach its decision, the court needn't have consulted any law books but only a calendar. Or just look around to realize that the old Voting Rights Act was no longer needed. Indeed, the act had become discriminatory itself -- by imposing burdens on only selected parts of the country.
The rest of the court's docket this term added up to a general muddle. For example, is homosexual marriage in this country now legal? Your guess is as good as mine. Discriminating against homosexuals in federal law would seem to be illegal now, but states that recognize only traditional marriage -- that is, between man and woman, husband and wife -- still may do so. For now.
But a state like
The original impetus for the federal Defense of Marriage Act (DOMA) was to keep states that didn't recognize homosexual marriage from being forced to accept it. That part of DOMA, the key part, still stands. For now. But for who knows how long? With this court, nothing is clear and therefore nothing is final. Or even clearly settled just now.
The court also decided not to decide whether colleges and universities could go on discriminating against better qualified students in deciding whom to admit -- in the name of fighting discrimination, of course.
The first mistake, the original sin, in this long history of injustice was the court's approving schools' decision to combat racial preferences by adopting more racial preferences, this time in favor of the other race. Reverse Discrimination, it used to be called. Though it requires only a cursory glance at such policies to realize they're just the same old discrimination -- only with the colors reversed.
In this case, too, Mr.
The court's chief justice,
The court's decision on Affirmative Action would better be described as a non-decision. Its approach to these cases, too, might be summed up as To Be Continued.
These days the court's decisions are not final because they're fallible; they're fallible because they're not final.
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