Supreme Court Has Been Contributing to Social Decay, Jones Argues

January 30, 2003
U.S. Court of Appeals Judge Edith Jones said Supreme Court decisions have had negative impacts in several areas, including crime and punishment, pornography, family relations, public order and youth and education.

Since the 1960s, the U.S. Supreme Court has been issuing decisions contrary to the generally held values of Americans, imposing a "modish, untested philosophical notions and extreme libertarianism that would have left the [Constitution's] Framers aghast," Edith Jones, a judge on the New Orleans-based U.S. Court of Appeals for the Fifth Circuit, told a packed room Jan. 28 in a speech sponsored by The Federalist Society.

This series of decisions has done "more to jeopardize than sustain" the future of American society, which she said stands "as the most successful and long-lived experiment in self-government and human freedom in history."

She attributed that success to the framers' principles of limited government and personal honor and virtue. The framers' standards of personal conduct were based on the Ten Commandments and the Golden Rule and, whatever the influences of Enlightenment thought might have been, the nation's foundational values were Biblical.

Surveys show that "95 percent of Americans say they believe in God. People everywhere subscribe to the values of the Ten Commandments — don't steal, don't kill, don't covet — however they are phrased," she said.

The Court "got out in front of the self-governing society, overturning local authorities and self-governing groups and imposed these values on society," Jones declared. "I love this country. I love the heritage on which it was built. I want my children to have that heritage. Once people lose self-control it results in the growth of repressive government. When you don't have internal control, you have to have external ones."

Jones outlined five areas in which decisions have had what she considers socially damaging consequences: crime and punishment, pornography, family relations, public order and youth and education. The Warren Court, she contended, "extravagantly assumed the power to dictate new 'rights' not expressly stated in the Constitution and in so doing foisted its philosophical vision on the United States with consequences far beyond the Court's imagining."

The Court has made good decisions over these years but the harmful ones have never been "wholly overruled, although the court has refrained from carrying out their implications to the fullest extent and, on occasion, has retreated."

She does not think the decisions alone accounted for the cultural trend. "The Dred Scott case did not cause the Civil War. But Dred Scott proves that we cannot and should not ignore the social implications of the Supreme Court's decisions."

In the area of crime and punishment, she said that in the '60s and '70s crime was thought to be attributable to social problems such as racism and poverty and that criminal behavior was even posited as "a logical response to a repressive society." Supreme Court decisions wanted society to "play fair in a legalistic sense with lawbreakers" and so "constitutionalized" criminal procedure. She ticked off a 20-item list of new rules that transformed the way investigations, prosecutions and incarcerations are handled and that turned justice into a matter of "gamesmanship between the accused and the state.

"The cat-and-mouse nature of the criminal justice system encourages a criminal to try to beat the odds and, if he is caught, to disdain guilt or responsibility. The present system inhibits the criminal from developing the contrition that is necessary to turn him away from bad behavior," she said. The rulings have contributed to a more "brutish society."

The court saw pornography as "being about free speech," she said, ignoring "the ancient and consistent antecedents of the laws they were overturning."

She drew a chuckle from the mostly male audience when she read from the majority opinion in Stanley v. Georgia that a man has a "right to satisfy his intellectual needs in the privacy of his home," and asked if men are answering "intellectual" needs when they look at pornography. She likewise ridiculed another statement in the ruling in Ginsburg v. New York that said parents are not barred from buying magazines containing nudity for their children. "Who can imagine parents purchasing obscene magazines for their children — much less that the Supreme Court would appear to condone it?" she wondered.

Pornography exploits women and children and "puts sex on the level of a bodily function," and is now hardly confined to the home, she pointed out. It is pervasive on the Internet, in movies and advertising and on television, she said, with the result that modesty has declined and "the rest of the world sees us as immoral.

"The explosion of pornography and the degradation of sex move us toward a society both brutish and solitary," she lamented.

In a series of decisions bearing on family relations, the court ended the legal distinctions between legitimate and natural children with the result that the marriage has been destabilized as an institution, and children suffer as a result. "Society must erect legal support for the more difficult but ultimately more fulfilling commitments of marriage. There is no proof that a healthy society can exist or perpetuate itself without that institution," she said.

In the area of public order she argued that the court transmogrified free speech into free expression so that "Shakespeare is on a par with Larry Flynt's Hustler." She said the gist of that trend has been to prove George Orwell was right when he said that when the quality of language is debased, the precision of thought suffers.

She also faulted the court for a "loss of order in schools" that she implied resulted in school environments in which shootings now happen. "School discipline is about the rule of the social compact," she maintained, and one thing schools teach is respect for law. The authority of school boards and officials was "chilled" by decisions such as Tinker v. Des Moines Independent School District and Goss v. Lopez, which she said gave a misplaced adult-like autonomy to children. She said that trend has since subsided.

"By devaluing personal responsibility for good conduct, the Court's decisions have propelled society back toward a pre-social contract state of nature," she said. "Only a very wealthy society can indulge such a large share of degradation as we have done."

Although the court has retrenched on some of its rulings, the moral foundation of self-control is necessary to self-governance and must be fortified. "Laws can slow the decay of morals, but they cannot restore morals," she said. "The Constitution is not a suicide compact. Judges should not issue decisions that are fatal to society."

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