Supreme Court future

The Supreme Court's record over the last few decades has rendered it "a court of supreme surprise." This, anyway, is the opinion of Tom Ashcraft, a Charlotte, NC lawyer who is a columnist for the Charlotte Observer. In an article dated July 9, 2005, he asks his readers to consider these surprises:

First, whereas voluntary group prayer in public schools was an old custom in many localities by mid-20th century in the United States, the Court decreed in the early 1960s that this tradition had to cease. Writes Ashcraft: "Without any new amendment to the Constitution, the Court eliminated a long-practiced freedom for American communities and planted a seed which has grown into intolerant secularism. Court-inspired confusion about religion has only gotten worse over time. In decisions last month, each 5 to 4, the justices approved display of the Ten Commandments outside the Texas State Capitol and struck down display of the Ten Commandments inside two Kentucky courthouses."

Second, until 1973, all 50 states had laws criminalizing abortion in some degree, reflecting an ancient Judeo-Christian commitment to protect innocent human life in the womb. Ashcraft observes: "The multiple generations of Americans who sustained these laws believed they were perfectly compatible not only with the Constitution but also with much older Western legal traditions. Based on parts of the Constitution ratified in 1791 and 1868, the 1973 Court in Roe v. Wade said, in effect, 'What we have here -- even though you Americans out there missed it all these years -- is an implicit constitutional right to privacy which includes the right to destroy an unborn child. Traditional anti-abortion laws are unconstitutional and henceforth void.'"

Third, notes Ashcraft: "The Supreme Court got off on the wrong foot interpreting the equal protection clause of the 14th Amendment in Plessy v. Ferguson in 1896. Correcting 'separate but equal' took nearly 60 years." But then, having made this correction and moved the country toward the Constitution's promise of racial equality under law, the Court surprised everyone by reauthorizing government classification of citizens by race -- this time to the detriment of whites. Ashcraft writes:

In Grutter v. Bollinger (2003), the Court approved, 5 to 4, the use of race for diversity purposes in admissions to the University of Michigan law school. Justice Clarence Thomas, the only black member of the Court, wrote in dissent, "No one would argue that a university could set up a lower general admission standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admission standard and grant exemptions to favored races."

Fourth, in 1986 the Supreme Court declared that nothing in the Constitution prohibits the states from enforcing criminal laws against homosexual sodomy. Such laws, as Ashcraft points out, predate the founding of the Republic. "Yet in Lawrence v. Texas (2003), the Court voted 5 to 3 to reverse the 1986 case, and created a new and surprising federal constitutional right to sodomy. When the Massachusetts supreme court announced in late 2003 that homosexual marriage had to be recognized under state law on the same basis as traditional marriage, the first case cited was Lawrence."

Fifth, whereas the framers of the 5th Amendment allowed the taking of "private property" by the state only for "public use" and only with "just compensation," in Kelo v. City of New London (2005), a five-member majority of the Supreme Court decided that Americans' private property could be taken by power of eminent domain and conveyed to other private owners when part of a development plan to revitalize the local economy. "It certainly surprised the nine owners who wanted to keep their property," writes Ashcraft, "including one whose family had owned the same house for over 100 years."

According to Ashcraft, the Constitution itself furnishes a number of means by which the American people can seek to put a stop to these and other like suprises. "One readily at hand is the appointment of more justices like Antonin Scalia and Clarence Thomas who respect the Constitution's text and history." If the Court is permitted to continue its activist agenda of re-shaping American law in defiance of any semblance of a notion of original intent, however, it should come as no surprise when the Constitution becomes no more than a quaint museum piece of American history.