How the Supremes Redeemed Bush

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"It is clear ... that the court has taken sides in the culture war," Justice Antonin Scalia wrote last week in his abrasive dissent from the Supreme Court's decision to decriminalize homosexuality. Excuse me, but what culture war? Yes, yes, I know that the extremists of the left and right have been bleating about the moral depredations of their opponents for decades (and raising lots of money off those differences). And, yes, I would guess that 72.3% of all yelling that takes place on political talk shows is focused upon "cultural" issues like homosexuality, affirmative action and abortion. But that is show business, not reality.

Most Americans aren't extremists, and they are not at war. The lovely paradox of 21st century America is that we seem to be increasingly united by the celebration of our differences. That is what the Supreme Court acknowledged in its decisions on homosexuality and affirmative action last week.

"The court legitimized and endorsed a cultural consensus," says Paul Gewirtz, a professor of constitutional law at Yale University. That consensus walks a socially sensible but legally clumsy line between tolerance and outright acceptance. Scalia noted that many Americans might not be comfortable with an openly gay business partner, scoutmaster, schoolteacher or boarder. True enough, but most people would also say that what Tyron Garner and John G. Lawrence did in the privacy of their Texas bedroom is none of our business. The court's affirmative-action decision was just as pragmatic. Most Americans disapprove of specific, codified racial preferences, like the now famous 20 points granted minority applicants to the University of Michigan. But American life, happily, is no longer plain vanilla. Anything all-white—law-school classes, corporate suites or presidential Cabinets—is not merely aesthetically displeasing, as Clarence Thomas asserted in his dissenting opinion, it is also considered socially deficient, inappropriate, un-American. Our diversity is the wellspring of American creativity, one of our competitive advantages in a global economy.

There is also a consensus on abortion: tolerable during the first few months of pregnancy but with severe limits after that. In fact, the rationale for Roe v. Wade—the right to privacy—was cited in the gay-rights decision. That the court's controversial abortion decision is now being used as a template for privacy cases is remarkable. It means that Roe is probably settled for the foreseeable future.

The political implications of all this are, I suspect, good for both the Republic and George W. Bush. The Republic is always strengthened by a reassertion of sanity. These opinions were written by conservatives appointed to the court by Ronald Reagan. The words they used were striking. Sandra Day O'Connor said diversity is "essential to the dream of one nation" and to the "legitimacy" of our leadership class. Anthony Kennedy said homosexuals are entitled to "dignity" and "respect for their private lives." If nothing else, these decisions demonstrate the distance between social reality and the witless intemperance of the current political debate—indeed, the gap between reality and politics is one of the reasons Americans find politicians so odious. Which may be why George W. Bush didn't have anything to say about either decision last week.

But I'll bet he was thrilled with both. Yes, his party's florid assortment of wing nuts was outraged. But the President has been very clever about fertilizing the conservative hothouse in ways that do not reach the consciousness of the general public—and who else is Jerry Falwell going to vote for anyway? On the other hand, if the court had recriminalized sodomy or abolished affirmative action, the vast sensible center of American politics might have started drifting back toward the Democrats. The party's activists, especially minority groups, civil libertarians and the Hollywood faction, would have been re-energized. One can imagine Tim Robbins furiously licking envelopes, and Barbra Streisand driving platoons of senior citizens to the polls. But the Supreme Court's temperate course—and the President's mild reaction—reasserts Bush's claim to moderation. For those same reasons, the President is probably praying that no one resigns from the court before 2004, leaving him with a hellacious, polarizing confirmation battle in the midst of a presidential campaign.

Democrats seemed increasingly mopey about beating Bush last week. The news from the court was the least of it. The President continued to raise tons of money. Congress passed a prescription-drug benefit for Medicare recipients, with the support of prominent Democrats like Ted Kennedy and Tom Daschle. Bush will campaign on this in 2004, depriving the Democrats of yet another favorite issue. What an odd turn of events: Bush is suddenly more successful at home than abroad. Saddam and Osama are still at large, but Kennedy and Daschle have surrendered. The war in Iraq is intensifying, but Washington’s beloved culture war has been defanged.