We're all strict constructionists, now!

Now that Al Gore's churchgoing and Tipper-kissing days are over, the media have trained their frustration and anger on the Supreme Court.

The decision in Bush v. Gore "will long be remembered," vowed the New York Times, "as an election decided by a conservative Supreme Court in favor of a conservative candidate."

Admittedly, the media's fascinating new respect for "states rights" extends only so far as a state kangaroo court attempting to rewrite the law in order to install Al Gore as President. Liberals are always huffy when the court fails to discover the political wish-list of the Democratic Party lurking in the penumbras of the Constitution. They see the Supreme Court as a sort of ideological tooth fairy, delivering partisan victories in the face of their defeats at the polls.

Since the decisions liberals like tend to be judicial flats issued by judges who share their political preferences, they naturally assume that the opinions they don't like are the result of other judges' opposing political preferences.

As the ever-hilarious Maureen Dowd described her notion of Justice Antonin Scalia's rationale in Bush, "We stopped the vote-counting because if we did not, Al Gore might have won."

This was almost as hilarious as her racist, pornographic slurs directed at the only black justice on the court for having the audacity to disagree with her carefully reasoned judicial philosophy, which-like the hilarious Ms. Dowd's political philosophy-all comes down to her bitterness about not being invited to her senior prom. We're all sorry about that too, Maureen, but we don't need to be reminded twice weekly.

Nietzschean Vision

Anthony Lewis-who seems to be writing all the op-eds in the New York Times these days-complained that the court's ruling in Bush v. Gore left the "impression that five justices acted as they did because they cared more about the result-ending the recount-than they did about the reasoning that would compel it.' The sort of reasoning that really sustains the court's legitimacy evidently requires the invention of mystical "penumbras" and "emanations" that necessitate overturning the state laws of all 50 states by proclaiming a right to abortion.

Indeed, most psychotically, New York Times' legal reporter Linda Greenhouse explained the importance of the Supreme Court's vast reservoir of prestige by citing one of the court's more brazen forfeitures of it: Planned Parenthood v. Casey.

On the actual front page of this bizarre sectarian newspaper, Greenhouse quoted the ponderous droning of the majority opinion in Casey about the court's "legitimacy ... the people's acceptance of the judiciary... allow people to accept its decisions . the court's legitimacy ... sufficiently plausible to be accepted by the nation," honk, honk, honk.

The first thing that strikes you about the court's "Nietzschean vision of us unelected, life-tenured judges leading a Volk"-as Scalia put it-is that the majority was not stupid enough to suggest that Roe (or Casey's re-interpretation of Roe) actually was a principled legal decision.

They're just saying the court's opinions need to create an illusion of principle in order to hoodwink the American people into thinking the court isn't issuing random political fiats. Which, of course, it is.

Most peculiarly, the majority in Casey seems to be under the misapprehension that the American people were, in fact, hoodwinked by the opinion in Roe--or, again, as Justice Scalia put it, that Roe was a "statesmanlike 'settlement' of a divisive issue, a jurisprudential Peace of Westphalia."

In his dissent, Justice Scalia recommended a different path to preserving the court's legitimacy: "Instead of engaging in the hopeless task of predicting public perception-a job not for lawyers but for political campaign managers-the justices should do what is legally right." If the justices are not interpreting "texts and traditions" but making value judgments, he wrote, "then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different."

But it wasn't the dissent the New York Times quoted on its front page as a warning to the court before it ruled in Bush v. Gore. It was quoting the majority's own rash admission that the court's legitimacy is a game of illusion. And that admission appeared in the one opinion that surely damaged the court's much-touted legitimacy more than any other-an opinion in which the court obstinately refused to overrule Roe v. Wade.

Not that there haven't been boatloads of other Supreme Court decisions that lacked something in the way of a const,tutional foothold. The court has also sustained its famous legitimacy, for example, by discovering various cockamamie criminal procedure rules-unmentioned in the actual Constitution.

In 1961, the court put its legitimacy-producing logic on display by discovering an exclusionary rule overturning the laws of 28 states. (Mapp v. Ohio)

In 1966, the court repealed laws in a 50-state sweep by discovering that otherwise voluntary criminal confessions had to be suppressed if not preceded by a formulaic series of warnings. (Miranda v. Arizona)