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Opinion: Culture war creates perils for Supreme Court justices

The Supreme Court will rule this month on the nation’s most divisive social issues — race relations and gay rights. The cases put the high court’s reputation on very slippery political ground by pulling the justices into the nation’s culture wars. 

Polls show the nation’s top court is already diminished by the impact of recent decisions that eroded public trust in its credibility as a politically independent, purely judicial arm of government. The 2000 Bush v. Gore case in which the court’s conservative majority put a Republican in the White House did particular damage.

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Former Justice Sandra Day O’Connor, nominated to the court by President Reagan, recently told the Chicago Tribune it might have been wise for the court to have avoided that case: “Maybe the court should have said ‘We’re not going to take it, goodbye.’ ” She concluded the court’s ruling probably “added to the problem at the end of the day.” And she said it hurt the court by giving it “a less than perfect reputation.”

The upcoming rulings in three cases go beyond the risk of playing a role in presidential politics. These cases touch Americans on a personal level. They involve traditions, religious beliefs and longstanding efforts to deal with the nation’s history of racial bias.

Since the 1950s, these are the types of cases that have stirred the most public backlash and hurt the court’s reputation. For example, the 1972 Roe v. Wade case legalizing abortion rights did not end arguments over a woman’s right to end a pregnancy. In fact, it created a political wedge issue. A key position among those opposed to abortion rights is that the court should have left it to local elected officials to deal with a personal and religious issue on a state-by-state basis.

Abortion continues to be fought over as state legislatures impose various restrictions and lower courts weigh their constitutionality.

The 1992 Planned Parenthood v. Casey ruling only continued the fight set off by the ’72 decision and opened the door to more lower court disagreements.

In the race cases, complaints about the court come from the political left. Their argument is that the court’s conservative majority is trying to undo prior rulings that gave protections to historically disadvantaged minorities or sought to level the playing field after long  periods of racial injustice.

In a 2003 case involving affirmative action at the University of Michigan — Gratz v. Bollinger — the court limited the use of race in college admissions. It made the laws around affirmative action more uncertain. Instead of creating a national consensus it set the stage for loud, divisive arguments in the lower courts in the same style of the abortion cases.

The latest case, Fisher v. University of Texas at Austin, comes from a white student who says the school’s formula for affirmative action violates the limits set by the court in the 2003 case.

The other case involving race centers on the court’s prior refusal to question the constitutionality of Section 5 of the Voting Rights Act, which requires jurisdictions with a history of discrimination against minority voters — mostly southern states — to seek permission from the federal government before making any changes in their voting procedures.

In the two gay rights cases, the court again risks repeating the dangerous pattern of setting off endless argument and litigation. One case involves a challenge to the federal Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriage. The second case is a challenge to a California proposition, supported by popular vote in 2008, which bans same sex marriage in the state.

The court is ruling at a time of a clear shift in public attitude toward gay marriage, with several polls showing a majority of Americans approving.

The court is about to wade into these culture war issues at a precarious time for its public standing.  According to a Public Policy Polling survey done last month, 42 percent of Americans have a negative opinion of the Supreme Court while 33 percent have a positive view.  The same poll found that 36 percent of Americans say the court has become too liberal, while 30 percent say the opposite. Only 29 percent describe it as “about right” in terms of ideology.

The court is at a tipping point where it could fall into public disrepute as just another part of Washington’s dysfunctional political culture. That right-left bickering has led to all-time low approval ratings for the partisan and polarized Congress.

Chief Justice John Roberts has been trying to stay on solid ground with the public. The New York Times reported recently “there have been no dissents in more than 60 percent of the 46 cases decided so far this term.” In the last three years, according to Scotusblog.com, more than half of the rulings have been unanimous.

It is difficult to see how the Chief Justice arrives at such a consensus with these four culture war cases. It is more likely the decisions will give way to even more heated emotions, including anger and a further erosion of trust in yet another major American institution. 

Juan Williams is an author and political analyst for Fox News Channel.