Tuesday, July 26, 2005

Roberts, Roe, and the American judiciary

The Anonymous Liberal, with whom I now cross-link, has an excellent piece on abortion, liberalism, and judicial philosophy in anticipation of the upcoming confirmation hearings for John Roberts -- see here. I encourage you to read his entire post, but I want to quote it extensively here:

[A] nominee's opinion as to whether Roe was correctly decided is virtually meaningless. It's certainly no indicator of how "liberal" the nominee is. Ruth Bader Ginsburg has been quoted as saying that she thought Roe was a questionable decision. Simply put, what a nominee thinks about Roe says virtually nothing about how that person will rule on any other issue.

Liberals, therefore, should not let the Supreme Court nomination process focus on Roe. We should instead focus on what a nominee thinks about the importance of legal precedent. Is the nominee the kind of person who respects precedent and understands the real world consequences of overturning well-established law? Or is he the kind of person who allows ideology to blind him to such consequences.

Liberals should also focus on highlighting the inconsistency and consequences-be-damned recklessness of originalist thinking. For instance, even the most devout originalists, such as Justice Thomas, often fail to follow their own philosophy. Affirmative action is a good example of this inconsistency. There is a veritable mountain of historical evidence that the drafters of the 14th amendment did not intend to outlaw affirmative action. Indeed, the very people who drafted the amendment simultaneously created the Freedmen's Bureau, a massive government agency devoted solely to large scale affirmative action initiatives. Thomas nevertheless insists that affirmative action violates the 14th amendment. Similarly, both Scalia and Thomas have decided cases based solely on unwritten "principles of federalism" that are somehow implied by the structure of the Constitution. These principles, however, are just as illusive as the infamous "right to privacy" that originalists are so quick to condemn.

Pointing out hypocrisy only gets you so far, though. Liberals must also point out the extent to which originalism is incompatible with our modern laws and institutions. For instance, people must be told that under Thomas's originalist interpretation of the Establishment Clause, the separation of church and state that we take for granted would only apply to the Federal government. States would be free to found churches or build monuments to Jesus in the public square. On a more fundamental level, originalist thinking puts much of our modern administrative state in jeopardy, including virtually all important regulations governing the environment, public safety, working conditions, etc.

With so many important things to talk about, it's a pity we always focus on the one that's the least illuminating.

I tend to agree with A.L. here, but, admittedly, there is much more that could be said for and against "originalist thinking" and its application, as well as for and against the "hypocrisy" of Scalia and Thomas.

But it is certainly true, I think, that abortion's hold on the American political (if not judicial) mind -- and, more specifically, on the minds of those of us who are paying attention to the Roberts nomination -- is disproportionately high. There is a knee-jerk tendency to think about Supreme Court justices and those either nominated for the Court or considered to be candidates for such nomination in terms of where they stand on abortion -- and, more specifically, of where they stand on Roe, as if one's judicial philosophy and political ideology can be determined by whether one thinks Roe should be upheld or overturned. It's an unfortunate black-and-whiteness that oversimplifies a complex issue (who except the radical fringes doesn't think abortion is a complex issue?) and pushes aside other and in some cases more significant areas of constitutional law, such as commerce, crime and punishment, civil rights, the environment, and the separation of church and state.

This is not to say that abortion isn't an important issue, nor that Roberts's (or any other candidate's or nominee's) views on abortion shouldn't be considered. But the centrality of abortion in American political life does need to be reconsidered, especially when we're talking about the Supreme Court. It's simply not the most illuminating issue.

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