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Jewish World Review June 7, 2000 / 4 Sivan, 5760

George Will

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The Grandparent Dissent --

IN AN ERA of family fragmentation, family law partakes of society's improvisations. So on Monday the nine justices of the Supreme Court, six of them grandparents, produced six opinions sifting a dispute about grandparents' rights. The dispute began in Washington state when Brad Troxel committed suicide. This case produced striking examples of both judicial overreaching and judicial restraint.

Troxel never married Tommie Granville, with whom his relationship ended in 1991. But by then there were two daughters. After his death in 1993, his parents continued to be doting grandparents--too doting for the comfort of Ms. Granville. In October 1993, she told them to limit themselves to one short visit per month. They sought a court order giving them a right to two weekends of visitation a month and two weeks of visitation each summer. They sought this under an unusually broad version of the grandparent visitation laws that all states have. The Washington law allows "any person" to petition "at any time" for visitation rights, and authorizes state courts to grant such rights whenever those courts deem it in the child's "best interest."

A state Superior Court, playing Solomon, ordered one weekend visitation per month, one week during the summer and four hours on each grandparent's birthday. The court opined that the grandparents are part of "a large, central, loving family," and that they could provide "quality time" and "opportunities for the children in the areas of cousins and music."

Ms. Granville appealed this to a higher state court, which gave the Superior Court's free-lance parenting the short shrift it deserved. The grandparents appealed to the U.S. Supreme Court, which, in a plurality opinion written by Justice O'Connor and joined by Chief Justice Rehnquist and Justices Ginsburg and Breyer, marveled at the audacity of the law under which the Superior Court elbowed aside the mother.

O'Connor said it is settled constitutional law that the guarantee of "due process" has a "substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests," including the interest of parents in directing "the upbringing and education" of their children. O'Connor noted that even though no one had alleged that the mother was unfit, and even though she had not sought to end all visitation, not only did the Superior Court offer no deference to her preference, it placed upon her the burden of disproving the wisdom of the visitation arrangement the court preferred. Here, for example, is the Superior Court judge's reason for ordering a one-week summer visitation:

"I look back on some personal experiences. . . . We always spen[t] as kids a week with one set of grandparents and another set of grandparents, [and] it happened to work out in our family that [it] turned out to be an enjoyable experience."

That is an appalling justification for judicial usurpation of parental rights. However, Justice Scalia, dissenting, said there also was judicial presumptuousness in the Supreme Court's affirmation of parental liberty.

He said that he considers the right of parents to direct their children's upbringing to be among the "unalienable rights" to which the Declaration of Independence refers, and he thinks that right is among the "retained" rights to which the Constitution's Ninth Amendment refers. ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") But, Scalia said:

" The Declaration of Independence . . . is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people."

By vindicating "parental rights" under a Constitution silent on the subject, the Supreme Court, Scalia said, is improvising judicially prescribed family law, complete with judicially approved assessments of "harm to the child" and judicially defined "gradations of other persons" (e.g., grandparents) who "may have some claim against the wishes of the parents."

He added that he does not believe federal judges will be better at this than state legislatures. And state legislatures "have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people."

Most conservatives favor judicial restraint, but parental liberty, too. They immediately applauded the ruling that evoked this dissent from Scalia. The astringency of his restraint calls the bluff of many conservative advocates of judicial restraint.

Comment on JWR contributor George Will's column by clicking here.


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