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Monday, June 27, 2005
"Divisiveness"
Ten Commandments | Posted by Sanford Levinson at 03:23 PM
With regard to "divisiveness": I think it is useful to compare the concern expressed by Justice Breyer (and, before him, Justice Brennan) for the "divisiveness" posed by religious controvesy in the public square with the views expressed by some conservatives that race-based divisiveness is equally dangerous, so that affirmative action must be made unconstitutional (and not simply criticized as bad public policy) lest the polity be caught up in an ever-more-dangerous identity politics. And, of course, political conservatives, well aware of the power of Karl Marx's analysis, are quick to pounce on anyone who suggests that American politics might benefit from a dose of old-fashioned "class conflict." What unites all of these views is precisely what Rick Pildes brilliantly identified in his article on Bush v. Gore four long years ago: We have a Supreme Court (and, of course, they are not unique in their perceptions) that is basically terrified of politics and the potential for genuine conflict that a serious politics can generate.
The nine justices, of course, are not fearful of precisely the same threats to the political order, thus the 5-4 divisions. As Eugene points out, though, there is no reason at all to believe that these particular Supreme Court justices have any real idea of the practical dynamics of our political system. Steve Breyer is, no doubt, very smart, but it is surely close to bizarre that he believes that participants in contemporary culture wars over the Ten Commandments will be impressed by the Harvardian distinctions between the Ten Commandments in the Courthouse and outside it. As is often pointed out, only Sandra Day O'Connor (who, I am sure, shocked both her supporters and detractors, of whom I am generally one, by actually being consistent in these two cases), has ever actually held elected political office. It is interesting that she doesn't perceive the same threat, at least in this case, that her colleague does.
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