We're all strict constructionists, now!

Last term--in one of those legitimacy-testing split decisions-the court struck down a federal law that did not toe the line on Miranda. As Justice Scalia noted in his angry dissent, a majority of the justices openly acknowledged that the Constitution could not be interpreted to require Miranda warnings, and the original Miranda decision, therefore, was wrong.

This isn't just a matter of the court's clinging to precedent no matter how obviously wrong it is. Oh, no. The court is perfectly willing to dump even principled earlier decisions to please the editorial board of the New York Tunes.

Thus, in another great legitimacy-promoting opinion, the Supreme Court overturned a Colorado initiative approved by 57% of the voters that prohibited the government from granting preferential treatment to homosexuals. Not equal treatment, preferential treatment.

Adherence to precedent-which had been so vital to the majority opinion in Casey-was not so enticing to the majority in Romer (composed of virtually the same justices). Just ten years earlier the Supreme Court had upheld a state law criminalizing homosexuality in Bowers v. Hardwick. Now it was saying that what the state could make criminal it could not refuse to grant preferential treatment to.

The constitutional theory for the justices' ruling was based on the Equal Protection Clause of the 14th Amendment-the very same provision dim that the media are now denouncing as an illegitimate holding in Bush v. What's-His-Name.

As Justice Scalia summarized the holding in Romer. "[T]he principle underlying the court's opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws."

Justice Scalia continued: "If merely stating this alleged-equal protection-violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness."

Back when the Equal Protection Clause was used to invalidate the results of a voter referendum in Colorado denying special treatment to homosexuals, the New York Tmes called it, a "victory for fairness" and "one of this court's finer moments."

Taunting the Supreme Court

But when the very same clause was used to strike down a court-ordered, indiscriminate "recount" of some citizens' ballots, in some counties, using wildly different standards, the New York Times shrilly denounced the decision as a blow to "the public trust and the tradition of fair elections." Most cruelly, the Times accused the court of lacking "sensitivity."

The Romer case was so well thought out and clearly explained that the lower federal courts proceeded to ignore it. Acted like it never happened. Whisked away into the black hole of history. Treated as a nullity.

In case you have the legal acumen of a Florida Supreme Court judge, this was an extraordinary development. Lower courts are not supposed to ignore the opinions of the U.S. Supreme Court.

But just two years after Romer, the 6th Circuit Court of Appeals was faced with a Cincinnati ordinance denying preferential treatment to homosexuals in language almost identical to that of the Colorado initiative. The appellate court upheld the Cincinnati law, claiming it couldn't make heads or tails of the Romer opinion. The decision was taunting the Supreme Court over its stupidity.