Liberal Justices Complain About American Law Being Too Protective of Civil Liberties and Colorblindness

Recently retired Justice John Paul Stevens, who became the leader of the Supreme Court’s liberal bloc in his later years on the Court, complained recently about the 1964 Civil Rights Act, which he claimed was “poorly-considered” because its text literally forbids all racial discrimination — including against white people — and contains no exceptions. Justice Ruth Bader Ginsburg, a sitting Supreme Court Justice appointed by Bill Clinton, recently advised Egypt not to model its constitution on the U.S. Constitution, but rather on documents like the South African Constitution that provide less protection for free speech and civil liberties. “I would not look to the US Constitution if I were drafting a Constitution in the year 2012,” she said.

Justice Stevens’ remarks reflect his discontent with the fact that whites occasionally win racial discrimination cases under the Constitution and civil-rights laws. The Supreme Court initially held that racial discrimination of all kinds was prohibited by the 1964 Civil Rights Act in its unanimous 1976 decision in the McDonald case, which ruled in favor of whites who had been fired; but later on, the Court judicially created an exception to the statute in order to allow some discrimination against whites in its Weber decision, which admitted that creating such an exception contradicted the plain language of the Civil Rights Act, but claimed that doing so would lead to a more egalitarian society. Later, the Supreme Court extended this exception to uphold a college admissions policy that discriminated against both whites and Asians in the name of “diversity,” rejecting legal challenges under both the Constitution and the Civil Rights Act (in the Grutter case). However, over Justice Stevens’ objections, it struck down another college admissions policy that the Court viewed as using race too much and too mechanically (in the Gratz case), and it also invalidated racial discrimination against whites in voting, once again over Justice Stevens’ objections (in Rice v. Cayetano).

Although liberal scholars, like former Civil Rights Commissioner Mary Frances Berry, have recently argued that the civil-rights laws were not intended to protect white people, the courts have held that the Civil Rights Act was indeed intended to prohibit racial discrimination even against whites, and thus, whites who experience racial harassment or abuse are able to sue under the Civil Rights Act, as cases like Huckabay v. Moore and Bowen v. Missouri Department of Social Services illustrate. (Affirmative action is viewed as merely a limited exception to the ban on racial discrimination in areas such as hiring and promotion, and thus not a license for an employer to fire or racially harass its white employees.)

Justice Ginsburg says that American courts should look more to foreign court rulings and other countries’ laws in interpreting our own Constitution. But she herself does so only when it is ideologically convenient, ignoring foreign court rulings that limit lawsuits and punitive damages, and allow governments to restrict late-term abortions.

Moreover, for the Supreme Court to rely on “international opinion” to decide cases — as liberal Justices do when it is convenient — could set a dangerous precedent for civil liberties, since foreign legal systems and international lawyers are often hostile to free speech, religious freedom, and other basic civil liberties, and the right of homeowners to defend themselves against criminals by wielding a knife or gun in self-defense. The U.N. Human Rights Council says there is no human right to self-defense, and that, quite the contrary, international human rights norms require “very severe gun control.”