Are these the words of a lone judge striking out against homosexuals and gays from a wayward lower court in a less progressive part of the country? Of are they the sentiments of a judge in the most exalted judicial position--the United States Supreme Court? If you chose the latter you would be right. These words were written by Justice Scalia in a dissenting opinion, joined by Justices Thomas and Rhenquist, in Lawrence v. Texas (p. 2496-2497), a 2003 Supreme Court case invalidating a Texas statute that criminalized homosexual conduct as a violation of the Due Process Clause of the Constitution.
These words, and many more like them, ate emblematic of what is wrong with the Supreme Court today. Although law, not ideology, is assumed to guide the Court's decisions, it is easy to spot the animus toward gay people that underlies this dissent. Although Justices Rehnquist, Thomas, and Scalia may have been in the minority, often they are not. The Court has enormous influence over social policy, and its decisions are increasingly at odds with social work values. Social workers and their professional organizations thus need to be fully informed and engaged in the doings of the Supreme Court.
Social workers are used to dealing in the traditional political arena, lobbying for bills before Congress or before regulatory agencies of the executive branch. They ate sometimes less comfortable with the Supreme Court, a legal institution that speaks in a different language and follows different rules. The power embodied in these nine nonelected justices who serve for life, and who have the last say on the Constitution, can seem unchallengeable. Whereas the social work literature includes numerous articles explaining Supreme Court decisions and their implications for social work practice (See, for example. Alexander, 1993; Alexander & Alexander, 1995; Kopels & Rycraft, 1993; Lens, 2000, 2001), less attention has been paid to the Court as a political institution and a target for political activism. This commentary attempts to fill that gap.
Legal scholars have taken note of the Court's political and ideological shift since President Reagan began staffing it with ideological conservatives (Chemerinsky, 1994; Gottlieb, 2000; Griffin, 2000; Kramer, 2000; Schwartz, 2001). In his book about the Rehnquist Court, Morality Imposed, Stephen Gottlieb (2000) concluded that the conservative block on the Court (Justices Rehnquist, Scalia, and Thomas, who are frequently joined by Justices Kennedy and O'Connor), has substituted its own moral judgments for the law, instituting a "far more major revolution in judicial thought in America than is commonly appreciated" (p. X1). In the areas of reproductive rights and civil rights this has meant less regard for personal autonomy and the impact of discriminatory behavior.
Many of the cases decided by the Court are contrary to our Code of Ethics (NASW, 2000), which requires a commitment to social justice, "on behalf of vulnerable and oppressed individuals and groups of people ... focused primarily on issues of poverty, unemployment, discrimination, and other forms of social injustice" (p. 5). In two key cases--Richmond v. Croson (1989) and Adarand Constructors, Inc. v. Pena (1995)--the Court made it more difficult for state and local governments to implement affirmative action programs by subjecting such programs to strict scrutiny, the highest standard of review under the Constitution and a difficult standard to meet. Prior to these decisions, affirmative action programs could be used to address general societal discrimination. Now states must show a compelling interest, such as a need to remedy specific past acts of discrimination. And recently, in Alexander v. Sandoval (2001) the Court drastically limited the effectiveness of civil rights laws by allowing civil rights actions by private individuals against recipients of federal funds (such as state and local governments) only for intentional discrimination and not for actions that have a discriminatory impact. …