As in the 1980s and 1990s, conservatives proved far more successful in implementing their views in economic and foreign policy than in the ongoing culture wars. Two significant Supreme Court decisions in June 2003 revealed how the largely conservative justices had come to accept that the social revolution that began during the 1960s could not be undone.
In two cases arising from challenges to the admissions policies of the University of Michigan, the Supreme Court issued its most important rulings on affirmative action since the Bakke case twenty-five years earlier. A 5-4 majority upheld the right of colleges and universities to take race into account in admissions decisions. Writing for the majority, Justice Sandra Day O’Connor argued that such institutions have a legitimate interest in creating a “diverse” student body to enhance education. The Bush administration had urged the Court to reject affirmative action. But O’Connor was strongly influenced by briefs on its behalf filed by corporate executives and retired military officers. In today’s world, they argued, the United States cannot compete in the global economy or maintain effective armed services without drawing its college-trained business and military leaders from a wide variety of racial and ethnic backgrounds.
In the second decision, in Lawrence v. Texas, a 6-3 majority declared unconstitutional a Texas law making homosexual acts a crime. Written by Justice Anthony Kennedy, the majority opinion overturned the Court’s 1986 ruling in Bowers v. Hardwick, which had upheld a similar Georgia law. Today, Kennedy insisted, the idea of liberty includes not only “freedom of thought, belief, [and] expression” but “intimate conduct” as well. The decision was a triumph for the feminist and gay movements, which had long campaigned to extend the idea of freedom into the most personal realms of life. And it repudiated the conservative view that constitutional interpretation must rest either on the “original intent” of the founding fathers or on a narrow reading of the document’s text. Instead, Kennedy reaffirmed the liberal view of the Constitution as a living document whose protections expand as society changes. “Times can blind us to certain truths,” he wrote, “and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”