by Jules Witcover
Interested non-lawyers were left dependent on legal experts to sort out where this highest bench, with a general but not rigidly consistent conservative majority, comes down in today's cultural and political climate.
Liberal defenders of the Voting Rights Act's preclearance monitoring of discriminatory practices in states, mostly in the Deep South, were jolted by the Court's split decision to abandon the provision. The majority argued it had become outmoded by virtue of its success. Cited was the much higher racial minority voting and office-holding in succeeding years.
Soon after, the liberals were lifted by different split decisions rejecting the Defense of Marriage Act's federal ban of same-sex marriage and overturning a lower court's voiding of a
At the same time, conservatives who lauded the derailing of voting rights preclearance were dismayed at the two decisions on same-sex marriage. In their disappointment, however, they clung to the fact the Court stopped short of declaring the marriages valid across the land, where about two-thirds of the states still bar legal sanction.
As a result, much reading of tea leaves has been going on, largely but not entirely in the wake of President Obama's two first-term appointments of liberal Justices
That quartet joined
In all this, still resonating are the concluding words 13 years ago of now-retired Justice
But Stevens went on: "One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of his year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the judge as an impartial guardian of the rule of law."
This harsh appraisal of that momentous ruling that ushered in one of the most divisive administrations in history lingers over the Court today, despite important changes in its composition. The majority's decision in the case was accompanied by the caveat that "our consideration is limited to the present circumstances." In other words, it was not to be taken as precedent altering the Court's longtime deference to the states in resolving their own political matters. The "present circumstances" were that the election of a president was at stake and the Republican majority responded accordingly.
Meanwhile, the disturbing odor of partisanship still hangs over the Court despite occasional breaks from it in its voting. A conservative majority that often rants against "judicial activism" still engages in it when its causes are served.