Say a Prayer for the Five Sane Justices

Jonathan Tobin at Commentary suggests that we conservatives say a prayer for the health of the five justices who are preventing this country from turning into a banana republic:

The Supreme Court’s ruling this morning on the New Haven firefighters’ lawsuit is a reminder of the vital role a sane majority on the high court plays in protecting the rights of citizens against the dictates of liberal ideology.

The 5-4 ruling, which reverses a decision endorsed by Supreme Court nominee Sonia Sotomayor, validated the complaints of a group of firefighters who took and passed a promotion test but wound up being told that the exam was invalid because no minorities had done well enough on it. Though no one could credibly allege that the test was biased or that any discrimination had actually taken place, the city of New Haven threw out the test (thus rendering the efforts of the firefighters who had passed it worthless) because they feared that they would nonetheless be sued by the affirmative action bar, which views any result other than the one sought for minorities as inherently discriminatory.

Sotomayor and the Second Federal Circuit majority that dismissed the firefighters appeal didn’t even bother to state their reasons for their egregious and unconstitutional approval of this outrage. But fortunately there are still five members of the Supreme Court who aren’t willing to go along with such travesties.

How did the four members of the minority justify their dissent? Judge Ruth Bader Ginsburg wrote that the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion.” This is nonsense. Having jumped through every hoop that the city of New Haven set for them, the firefighters were entitled to the promotions that they had fairly earned in open competition. Denying them these promotions, merely because they were neither black nor Hispanic, is inherently discriminatory. Such reverse discrimination has become commonplace in recent decades, but it is still a disgrace when our courts seek to rationalize such naked racialism through the sort of convoluted reasoning put forward by Ginsburg.

The majority, led by that fickle weathervane Anthony Kennedy (thank goodness the wind was blowing in the right direction!), is to be commended for establishing a precedent that may curtail the widespread practice of officially endorsed discrimination.

But just as interesting is the insight this ruling brings to the question of Sotomayor’s nomination. The Senate is being asked to approve a person who was willing to endorse blatant discrimination motivated by race, albeit in the guise of remedying past discrimination even when no such discrimination is proved or even alleged.

Sotomayor will, when she is undoubtedly confirmed, replace David Souter, one of the justices who were willing to let the affirmative action mindset further erode American democracy. But the fact that her nomination will not undermine the narrow majority for reason is no cause for complacency. A doctrinaire liberal like Barack Obama can be counted on to put forward similar nominees in the next three to eight years. Anyone who cares about the future of the rule of law in this nation should not go to sleep tonight without saying a prayer for the continued good health of Justices Roberts, Scalia, Thomas, Alito, and Kennedy.

Even if Sonia Sotomayor is confirmed the balance of the court will remain unchanged. However, should one of the holy five decide to call it quits, we're all in big trouble.