The 5-4 Supreme Court decision upholding narrowly crafted affirmative action programs is being celebrated by everyone from civil rights activists and university presidents to military officers and corporate CEOs. Tolerance and diversity are now mainstream values. Yet the survival of affirmative action could be short-lived. The Bush administration opposes both the Michigan admissions plan and the constitutional principle affirmed Monday that race could legitimately be a factor in assembling a diverse class of students or a diverse workplace. And President Bush, if he gets his way, will soon have the most radically reactionary High Court in modern history.
Two or three justices have told friends they wish to retire and could well step down this summer. The most likely are Sandra Day O'Connor, who wrote the majority opinion in the Michigan case, and John Paul Stevens, who voted with O'Connor. That would leave just three justices in favor of even the limited affirmative action that the court upheld.
The tenuousness of this vote is a reminder of so much else that is at stake in the courts. It isn't just affirmative action hanging by a thread. With two more ultra-conservative justices, Roe v. Wade, upholding a woman's right to an abortion, would be at risk. The Rehnquist Court has already begun pursuing a jurisprudence of convenience on regulatory issues -- defending states' rights when it dislikes a federal law and opting for federal preemption when it disapproves of state regulation.
Four or five of the present justices, depending on the issue, embrace a pre-New Deal version of federal authority, drastically limiting the national government's ability to regulate. For example, the court invoked states' rights when it overturned the Violence Against Women Act as well as major portions of the Americans with Disabilities Act, narrowing Congress's ability to enforce the 14th Amendment and to regulate under the Constitution's commerce clause.
Although he took office as a president who did not receive a plurality of the vote and who pledged to be "a uniter, not a divider," Bush has acted as if he had a broad, popular mandate to appoint radically activist judges. Clinton, by contrast, appointed mostly moderates. So did Bush's father.
The right has gone ballistic because the Senate has blocked a couple of extremist judges, although more than 95 percent of Bush's court appointments have sailed through. A far higher proportion of Clinton's were blocked.
Because the Supreme Court has been so closely divided, the appointment of even one far-right judge to succeed either Justice O'Connor or Justice Stevens could have grave consequences for a range of issues.
For instance, even weak campaign finance reform would be impossible. The Second Amendment protecting the "right to keep and bear arms," traditionally interpreted by the Court as authorizing well regulated state militias, could be reinterpreted to preclude even moderate forms of state or federal gun control.
The right-wing doctrine that defines regulation protecting the public as an unconstitutional "taking" of private property could be enshrined as national legal doctrine. The entire fabric of environmental regulation, legislated under Congress' traditional power to regulate commerce, would be at risk.
Congress' ability to protect the rights of criminal suspects, minorities, women and the disabled would be further eroded. Due-process challenges to the more dictatorial moves of John Ashcroft's Justice Department would find fewer friends in court. Commerce would get preference over privacy. Economic concentration would gain at the expense of pluralism and competition.
Many conservatives have expressed outrage that three of the five justices who voted to uphold a limited form of affirmative action -- O'Connor, Stevens and Souter -- were appointed by Republicans presidents. But those Republicans, Gerald Ford and George H. W. Bush, understood the importance of a Court that carefully balanced interests and respected precedent. They did not view the courts as an ideological battering ram.
Now the far-right Federalist Society has been empowered to take charge of the process of vetting judicial appointments. The far right views balanced compromises like the O'Connor opinion as sellouts and looks to the next wave of judicial appointments to complete the process of taking over the courts. Americans did not vote for this, and the Democrats have the power to block it by filibuster. The Senate Democratic leader, Tom Daschle, has wisely proposed that the next Supreme Court nominees should be consensus candidates that can win confirmation by a wide Senate majority. We will soon learn whether Bush reciprocates.
Robert Kuttner is co-editor of the Prospect.
This column originally appeared in yesterday's Boston Globe.
