Alito, Abortion, And Precedent
I am thrilled that the WaPo has brought Michael Kinsley on board. I don't always agree with him, but he's usually worth reading regardless. His recent piece on abortion...err...stare decisis was right on the money in some respects, and typically, off-base in others. Kinsley starts off with a bang:
In a 1986 case called Bowers v. Hardwick , the Supreme Court ruled that state laws against homosexual sodomy do not violate the Constitution. In a 2003 case called Lawrence v. Texas , the court ruled that, on second thought, anti-sodomy laws do violate the Constitution. Liberal politicians cheered this rare and unexpected admission of error by the court. They did not express any alarm about the danger of overturning precedents. Plessy v. Ferguson , upholding racial segregation, was a major precedent when the court overturned it and ended formal racial segregation with Brown v. Board of Education in 1954. Liberals did not complain.
These days, the vital importance of respecting past Supreme Court rulings is an urgent talking point for Democratic operatives, liberal talk-show hosts and senators feeling their way toward a reason to oppose Supreme Court nominee Samuel Alito. Olympia Snowe, a liberal Republican from Maine, said Wednesday that Alito's respect for precedents will be "the major question" in her decision on whether to support him.
The major question for Snowe and other liberal senators actually is not respect for judicial precedents. The major question is abortion. They want to know whether Alito would vote to overturn Roe v. Wade. But by the absurd unwritten rules of these increasingly stylized episodes, they are not allowed to ask him and he is not allowed to answer. So the nominee does a fan dance, tantalizing the audience by revealing little bits of his thinking, but denying us a complete view. And senators pretend, maybe even to themselves, that they really care about precedents and privacy in the abstract.
First of all, the rules are not unwritten. But it is definitely true that the abortion non-debate is rife with hypocrisy and hyperbole -- on both sides. Apparently no argument is immune from being taken to the illogical extreme in this overheated and often unfair dialogue. This leaves people like me, who believe that abortion takes a human life and that abortion is a matter best left to the states, but who also find the implied right to privacy found in Griswold fully consistent with the Founders' intent to keep government out of our personal lives, somewhat perplexed. It is the application of the Griswold reasoning to abortion and the subsequent removal of that issue from public debate that distresses. Surely the life of a child and the rights of the father present a compelling interest to balance the all-important "reproductive rights" that only women seem to possess in this country.
Kinsley rightly ridicules the preposterous Thousand Prostrations 'pro-choice' advocates ritually perform at the slightest mention of stare decisis: only in case mere precedent isn't good enough, we now have super-precendent, super-duper-precedent, and New, Improved Ultra-Precedent - Now With 20% More Binding Power. The reason for all these machinations is simple for those who haven't noticed that during all this Senatorial arm-waving, at no time do Arlen Spector's fingers ever leave his hands: precedent is not meant to be binding on the Supreme Court . In fact, it is the primary job of the Court to review both the rulings of lower Courts and its own prior rulings to ensure that they do not conflict with the Constitution, not precedent. During this process, precedent may be used, if applicable, as a guide. But if prior decisions can be demonstrated to be wrong, they are hardly sacrosanct.
Kinsley departs from the Path of Righteousness towards the end of his otherwise admirable essay:
While Roe defenders play this double game, ostensible Roe opponents, especially those in the White House, may be playing a triple game. Their public position is (a) Roe is a terrible decision, responsible for a vast slaughter of innocents; (b) legal abortion is deeply immoral; and (c) we ignore all this in choosing Supreme Court justices and you ( Roe defenders) should, too.
It doesn't make sense, and it's not believable. The natural assumption is that President Bush is trying to con abortion-rights supporters. Only an idiot would squander the opportunity to rid the nation of Roe because of some fatuous nonsense about picking judges without finding out the one thing you most urgently want to know. But Machiavellians of my acquaintance believe that it is the antiabortion folks who are getting conned. The last thing in the world that Republican strategists want is repeal of Roe . If abortion becomes a legislative issue again, all those pro-choice women and men who have been voting Republican because abortion rights were secure would have to reconsider, and many would bolt.
Nonsense. First of all, Kinsley is naive in assuming that abortion is an important enough issue to cause pro-choice Rethugs to jump ship in significant numbers. We don't think the same way Democrats do - that's why we vote Republican. And most of us are rational enough to realize the debate would simply move to the states, and few states would outlaw abortion outright. I for one would welcome this outcome. Abortion is far too important a decision for society to make without talking about it.
Another defining characteristic of many conservatives (and the reason we land in the Republican tent despite our sometime lack of proper Reich-wing ardor) is that we understand that a just process does not always guarantee a desireable outcome and moreover, we accept this. Whereas many if not most liberals continue to make the argument that the end justifies the means. I know what I think on abortion as well as several other issues. I just don't happen to think I have the right to issue-shop my Supreme Court justices.
I want someone on the Court who sees his or her duty as being to the Constitution, whether or not they agree with me in the particulars. I want justices who believe in a limited role for the Court - who understand that they are not a third unelected super-duper legislature who can never be voted out of office and whose decisions can never be overturned because they form some kind of super-duper precedent never again subjected to national debate. I don't want them using Jacques Derrida to deconstruct what the Founding Fathers could possibly have meant by the Public Use Clause, which was written in plain English even a junior high school student can read and understand.
This isn't brain surgery.
It's time we did have a national debate about abortion. Even more importantly, it's time we had a national debate about the role our courts are taking in making law. But this will be impossible as long as our lawmakers pussyfoot around the subject with silly euphenisms designed to obfuscate the issue.
How about some plain English?