I'm reading The Nine, a book about the recent history of the Supreme Court, and it's been very enlightening. My respect for the court has grown so much. I especially intrigued by David Souter who is more or less an extremely thoughtful and intelligent luddite. (He moves his chair around his chambers so that he can read by sunlight rather than turning on a light and writes his briefs by fountain pen.) He was brought into the court as a conservative, and he is. But he's also so much more complex than the label "conservative" gives him credit.

One of the most troubling aspects of politics, especially in this country, is the "us versus them" mentality it promotes. We do not, in reality, fall into tidy little boxes of Democrats and Republicans, liberals and conservatives. More importantly, we are still part of a couple much larger boxes of Americans and "people". Divisive politics put me off and make me wonder if anyone in elected office knows how to work towards compromise instead of getting the big win. (Of course, they do but the appearance is often the opposite.)

Reading this book, I've grown a great deal of respect for the Supreme Court and (with one exception: Thomas) for each of the justices. They are generally highly-apolitical in their practice (though most definitely not always in their personal views), they are extremely thoughtful in their analysis and decisions, and their purpose, and the purpose of the court overall, is so interesting and important and unique. Great read.

Here's a quick except that I found particularly compelling. It relates to a case, Lawrence v. Texas, which had to do with a gay couple in Texas who were caught have sex in their apartment and we're arrested on an anti-sodomy law. (It was actually a law against "deviate sexual intercourse" which prohibits anal and oral sex.) The decision, read in June 2003, overturned a previous Supreme Court ruling in Browers v. Hardwick.

Kennedy's voice had an uncharacteristic quaver. He was more worldly than Lewis Powell -- Kennedy knew many gay people -- but he was also a conservative man by most definitions of that term. A devout and observant Catholic, he needed no instruction in the religious and moral prohibitions on homosexual conduct. He was, simply, a man who had been transformed by the change world around him.

"We granted certiorari to consider the constitutional claims presented, including the question whether Browers v. Hardwick should be overruled," he said, then quoted a line from that opinion: "The issue as presented is whether the federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." But that framing of the question, Kennedy said, "demeans the claim put forward, just as it would demean a married couple if it were said marriage is simply about the right to Browers and here are, to be sure, statutes that do prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes seek to control a personal relationship that is within the liberty of persons to choose without being punished as criminals." The nation, he went on, "has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives." This was autobiographical, for Kennedy's own life had been shaped by those beliefs -- but then he said those rules cannot prescribe what the Constitution commands for all.

The next part of the opinion -- the key part -- displayed the influence of Salzburg in Kennedy's jurisprudence. Browsers made "sweeping references" to long-standing prohibitions on sodomy in Western civilization. These did not, however, "take account of authorities in an opposite direction," Kennedy said, "including the decision of the European Court of Human Rights in a case called Dudgeon v. United Kingdom. That decision, with facts like Bowers and the instant case, held that laws prescribing this sort of conduct are invalid under the European Convention on Human Rights." The pre-Salzburg Kennedy -- even the pre-Bush v. Gore justice -- would never have made such a reference.

As the tension rose in the courtroom, Kennedy finally announced the holding on the case: "The instant case requires us to address whether Browers itself has continuing validity. We conclude the rationale of Browers does not withstand careful analysis, Browserswas not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Browsers versus Hardwick should be and now is overruled."

There was no mistaking the significance of Kennedy's opinion. The point was not that the Court was halting sodomy prosecutions, which scarcely took place anymore. Rather, the Court was announcing that gay people could not be branded as criminals simply because of who they were. They were citizens. They were like everyone else. "The petitioners are entitled to respect for their private lives," Kennedy wrote simply. "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." The people who had devoted their lives to that cause understood precisely what had happened, which is why, to a degree of unprecedented in the Court's history, the benches were full of men and women sobbing with joy.