Cultural Revolutions

A Closely Watched Term

The Supreme Court's closely watched October 1999 term came to an end on June 28, and its themes finally became clear: inconsistency, incoherence, and arbitrariness. On that last day, the Court released important decisions on abortion, aid to religious schools, and homosexual rights, and refused to intervene in the Elian Gonzalez case. The Supreme Court's decision in the Elian matter was at least understandable, because there was no legal issue in the case that really demanded the Court's resolution. (The law was clear enough; it was the facts of the Elian mess that caused all the dispute.) But in all the other cases, I was hard-pressed to figure out what was going on.

For several years now, the most reliable guide to Supreme Court decisionmaking has been Sandra Day O'Connor's position on an issue. She is indisputably the swing justice, and the best word that I can think of to characterize her jurisprudence is "capricious." She was against allowing student-led prayers before Texas high-school football games, but she was in favor of supplying computers, purchased with federal funds, to private religious schools. She voted to reject a prohibition on partial-birth abortion, but indicated she would be willing to uphold such a law if it included an exception for cases in which the "health" of the mother called for the procedure. She joined in the Court's decision that the First Amendment was not...

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