Martin Luther famously said, “Here I stand. I can do no other.”
It is tempting — and here I will give in to the temptation — to view today’s embattled liberals, made increasingly anxious by the “mainstream” drifting to the right, as shouting with Luther-like defiance, “I stand in the Center! It can be nowhere else!”
One good example of that attitude is the New York Times editorial I criticized here, two posts down. An equally good one is an article, “Center Court,” by Jeffrey Rosen in last Sunday’s New York Times Magazine.
Rosen’s argument is that the “moderate majority on the Supreme Court, led in recent years by Justice Sandra Day O’Connor,
more accurately represent[s] the views of the country than do the two badly polarized political parties….
O’Connor, a former Arizona state legislator, has contributed to a series of compromise opinions in cases involving affirmative action, indirect government aid to religion, gay rights and abortion — all of which, in one way or another, seemed to split the difference between right and left.
Even when the Court does not reflect majority opinion, Rosen writes, the public, recognizing the error of its ways, soon rushes to catch up with where the “moderate majority” of Supremes has decided to lead. In this view, the Court may be a bit premature in some of its majority-ignoring (or defying) opinions, but it is never, you know, wrong. It never, under the rule of O’Connor moderation, overrsteps its bounds. As Rosen puts it:
This isn’t to say that the court is always in lockstep with public opinion: sometimes the court ratifies a strong national sentiment (striking down an obsolete state ban on contraceptives), and sometimes it stakes out a position that the public subsequently embraces (striking down school segregation). But whether the moderate justices on the Rehnquist court are self-consciously reading the polls, neutrally interpreting the Constitution or trying to compensate for other polarities in the political system, their high-profile decisions have been consistently popular with majorities (or at least pluralities) of the American public.
I have my doubts about this argument, but I have no doubt that it is almost obsessively overstated here, and elsewhere.
To say that the Court’s decisions on, say, affirmative action “have been consistently popular with majorities (or at least pluralities) of the American public” is to ignore the rejection, in poll after poll after poll, of racial preferences (the only accurate and meaningful way to describe affirmative action today) by significant majorities of the American people.
I wonder who were the plurality-affirming moderates in Raich, then. O’Connor was on the losing side with Thomas and Rehnquist, Scalia on the winning side with everyone else (though pointedly not joining Stevens’ opinion). Is there a majority (“or at least a plurality” — what on earth is Rosen talking about there, since in general you win a case or you lose it?) in favor of medical marijuana?
And I think Rosen’s encomium to redistricting at the end of the article is right, except that California is one of the few states where it won’t work. We’re too clumped here ideologically by geography. If you tried to make competitive districts in CA you’d have to go out of your way to fold bits of cities into suburbs, and even then two-thirds of the districts or so would still be safe seats; and if you just did something studiously neutral (like make equal-population horizontal swaths across the state from the bottom up), all you’d get is huge pile of districts containing a bunch of rich liberals on the coast and bunch of lower-middle-class conservatives in the Central Valley. Even if they were equally balanced in population, I think it’s reasonably clear which cohort would be more likely to have a Representative’s ear. Better to have districts that are all Coast and all Valley — at least, several of each; otherwise only the wealthy and articulate will be heard.
And actually, that’s pretty much what we have right now. The Bay Area’s Congresspersons aren’t to my taste, but no one living here could deny that they fairly represent the views of the local majority.