Justices Take a Turn to the Left

The Supreme Court was surprisingly empty on the last day of the term. Only a few dozen lawyers had gathered for the final decisions. Those who had were about to hear the rarest of judicial opinions: an apology for a past mistake and the promise of a distinctly new direction.

For the second time in a week, the normally conservative high court would proclaim a liberal policy of full inclusion for all. Monday’s unexpectedly broad victory for affirmative action would be followed Thursday by a strong endorsement of gay rights.

A term that had produced some solid gains for conservatives -- including the upholding of California’s three-strikes law, new limits on punitive damages verdicts against corporations and a ruling that public libraries can be forced to put pornography filters on their computers -- would end as the worst term for conservative causes since 1992.

And one of the court’s strongest conservative justices, Antonin Scalia, would be left looking isolated and marginalized.

In a courtroom where silence and decorum are the rule, what unfolded Thursday made for a moment of extraordinary emotion, especially for a group of mostly young attorneys who sat in one front row.

They had worked on the pending case from Texas. At one end sat aging Harvard Law professor Laurence H. Tribe, who had argued -- and lost -- a challenge to Georgia’s sodomy law 17 years ago.

Moments after the gavel sounded, Chief Justice William H. Rehnquist announced that Justice Anthony M. Kennedy would deliver the opinion in Lawrence vs. Texas.

Kennedy began by saying that the court had dealt with this issue before, in the 1986 Georgia case of Bowers vs. Hardwick. Then the court had delivered a thundering condemnation of homosexuals. Its opinion spoke of “heinous acts” and “crimes against nature.” But on Thursday, it soon became clear Kennedy was not citing the Bowers precedent to follow it, but to admit that the court had been wrong -- and tragically so.

As Kennedy spoke, one of the young lawyers who had been listening intently peeked up and looked into the eyes of those down the row, as if seeking confirmation that they too had heard the same words of respect and dignity that she had heard.

“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers vs. Hardwick should be and now is overruled,” Kennedy said.

There are no high-fives or applause in the Supreme Court. But across the front row could be heard quiet weeping. Tears flowed amid the smiles.

In one decision from the nation’s highest court, gays and lesbians had gone from outcasts in the eyes of the law to full-fledged Americans entitled to the same rights and respect as others.

Day to day, the Supreme Court decides legal questions, and usually does so as narrowly as possible. But it also has a unique power to speak broadly to the nation and to proclaim basic principles of American law. Thursday’s opinion was such a statement.

And it was the second such statement in a week. On Monday, the court endorsed the principle of racial diversity as a “compelling” goal. Race still matters, said Justice Sandra Day O’Connor, and it is essential that the door to opportunity remains open for blacks and Latinos.

The message of both opinions was that liberty and equality are not for some, but for all Americans. Gays and lesbians are entitled to be treated with dignity and blacks and Latinos are entitled to be full participants in the leadership ranks of the nation, the court said.

Of course, the Supreme Court does not by itself change attitudes. More often, it simply reflects a shift in thinking. In the case of gays and lesbians, the court could be said to have caught up with the generational shift in the public’s notion of homosexuality.

The author of the 1986 Bowers opinion, Justice Byron White, was a football star of the 1930s. Then, homosexuality was seen as a moral failing or a psychological disorder, best to be avoided and free to be condemned.

In recent years, homosexuality has come be viewed by many as akin to being left-handed, a variation on the norm.

In May, a Gallup poll found that Americans by a 2-1 margin say sex laws targeting gays should be repealed. While the public remains split on same-sex marriages, the polls suggest a large majority supports the court’s decision striking down the Texas law against “deviate” sex acts.

The court’s view on affirmative action reflects elite opinion more than general sentiment. When asked about who should be admitted to colleges or law schools, the public by a large margin says “merit” should be the sole deciding factor.

But university officials, military leaders and corporate executives urged the court to give them leeway to choose minorities from the pool of highly qualified applicants. By a 5-4 vote, the court agreed and upheld the affirmative action policy at the University of Michigan Law School.

For social conservatives, the unexpected decisions of the 2003 term on affirmation action and gay rights brought back memories of that 1992 term.

Then, the court was dominated by new appointees of Presidents Reagan and George H.W. Bush. Eight of the nine justices were Republican appointees, and the only Democratic appointee was the conservative Justice White.

That spring, the court had taken up an abortion case from Pennsylvania and a school graduation prayer case from Rhode Island. Many believed the court was on the verge of overturning Roe vs. Wade, the ruling that legalized abortion nationwide, and the bans on school-sponsored prayers handed down during the 1960s.

Instead, in a pair of 5-4 rulings, with O’Connor and Kennedy in the majority, the court affirmed the basic right to choose abortion and the prohibition on school-sponsored invocations and prayers. Scalia delivered a vehement dissent that accused his colleagues of betrayal.

This spring saw something of a replay.

The court had appeared poised to overturn the Bakke decision on affirmative action.

A conservative legal group had won a ruling knocking down race-based admissions policies in Texas and Georgia. It then took on the University of Michigan and succeeded in bringing the case before the high court, only to see the court strongly endorse the Bakke decision and affirmative action.

The court’s new support for gay rights is not shared by all -- some believe homosexuality is sinful and should be illegal.

Scalia spoke for them Thursday.

“Today’s opinion is the product of a court ... that has largely signed on to the so-called homosexual agenda,” Scalia said in an angry tone. The majority has joined the “homosexual activists [who seek to] eliminate the moral opprobrium that has traditionally attached to homosexual conduct,” he said. Only Rehnquist and Justice Clarence Thomas joined him.

As Scalia spoke, his colleagues seemed determined to ignore him. They gazed straight ahead or studied the ceiling.

Although Scalia’s views resonate with a large segment of the public, his influence within the court appears to be minimal.

Without question, he is smart, quick, witty and devoted to the law. He is considered the court’s most gifted writer, and he often dominates the oral arguments. Yet he rarely writes an important opinion for the court. Even when there is a conservative majority, Rehnquist assigns the court’s opinion elsewhere, such as to Justices O’Connor and Kennedy.

Scalia has a rigidity and an abrasiveness that drives away the others. He is known for his sharply worded dissents -- but little else.

When he joined the court in 1986, many assumed the former University of Chicago law professor would emerge as the true leader of the court. But from the beginning he had a hard time concealing his disdain for his colleagues.

Now 67, Scalia seems resigned to -- or perhaps relishes -- the role of the great dissenter.