Supreme Immodesty: Why the Justices Play Politics

The Washington Post

Why does the supposedly nonpartisan Supreme Court split so often along ideological lines, with the four conservatives locked in combat against the four liberals and the eclectic Justice Anthony Kennedy determining which faction wins?

And why do all of the justices so often find in the Constitution a mirror image of their own political and policy views on issues as diverse as abortion, race, religion, gay rights, campaign finance, the death penalty and national security?

The justices strenuously deny voting their own policy preferences. So, are they insincere?

Well, no, except that none admits that interpreting the Constitution is an inescapably subjective enterprise in which policy and political preferences unavoidably play a big part. This is especially true at the Supreme Court, which is not strictly bound by its own precedents.

Even a rigorously apolitical justice passionately committed to "applying the law" would often find no clear law to apply.

Conservative (and some liberal) "originalists" are correct in saying that justices who seek to override the text and original meaning by invoking the "living Constitution" have nothing to guide them but their own policy preferences — and precedents, which can be overruled.

But originalists cannot avoid subjective judicial policymaking, either, for at least four reasons.

First, there has never been a consensus on the original meaning of expansive constitutional phrases such as "due process of law" and "equal protection of the laws," or on how to handle the tensions among various other provisions. The Framers themselves often differed on how to apply the Constitution to specific cases.

Second, any consensus that may have once existed about the meaning of the most important provisions has been erased by time and by the revolutionary changes in the way Americans live.

Why Abortion Should Swing Few Votes

National Journal

Gov. Sarah Palin’s opposition to legal abortion — even in cases of rape and incest — has given the issue new prominence. Passionate abortion foes are enthused. Passionate abortion-rights supporters are horrified.

But most voters probably won’t give the abortion issue decisive weight in choosing between John McCain and Barack Obama. And for good reason. Both political parties embrace unpopular, immoderately absolutist positions on the issue, although McCain has flirted with moderation in the past.

And even though one or more of the five Supreme Court justices who clearly support abortion rights may well retire in the next four years, neither party is likely to succeed in making it a lot harder — or a lot easier — for most women to get abortions.

Polls show that a large majority of Americans reject both Palin’s uncompromising anti-abortion vision and the Republican platform’s extreme call for banning all abortions and all embryonic-stem-cell research. Most also oppose overruling Roe v. Wade.

But most voters don’t agree with Obama’s absolutist abortion-rights record, either. Obama would make it easier for women to get abortions; most voters would make it harder. Obama would require the federal government to fund abortions for poor women; most voters oppose that. And Obama’s record as an Illinois state senator can be read as suggesting that he may have a more sweeping vision of abortion rights than any of his current Senate colleagues have.

Would a McCain-Palin victory spell doom for Roe v. Wade and constitutional protection of abortion rights? It’s an outside possibility, but I’d bet a lot against it.

The Supreme Court: Place Your Bets

The Atlantic

A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O’Connor, a disagreement between two of the nation’s best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:

What will the legal landscape look like in 10 years? Make your predictions and place your bets.

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country’s judicial landscape in a generation … with repercussions as yet unimagined," she predicts.

"I’m not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation’s smartest legal editorials for The Washington Post, highly recommends Greenburg’s book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony.

To advance this intriguing discussion, I offer specific predictions below and invite others to offer theirs.

Opening Argument – Honest Nominees and Artless Dodgers

National Journal

"Judge Alito, in 1985, you wrote that the Constitution — these are your words — ‘does not protect a right to an abortion.’ You said [today] that those words accurately reflected your view at the time. Now let me ask you: Do they accurately reflect your view today? … Why can’t you answer the question?" – Sen. Charles Schumer, D-N.Y.

"Because … the issue of abortion has to do with the interpretation of certain provisions of the Constitution." – Judge Samuel Alito

Again and again, Schumer and others pressed the question. Again and again, Alito ducked and dodged. The questions seemed fair. The answers seemed lame, evasive, even infuriating, to those of us who want straight answers. So how can I persist in my admiration of Alito? And how can I continue to credit the virtually unanimous views of people well acquainted with him that this is a man of extraordinary honesty and integrity?

The answer is that the confirmation process has been degraded to the point that I don’t think Alito or any other nominee of integrity — conservative, liberal, or moderate — could be confirmed if he or she gave direct and candid answers to every question about every issue.

Far-fetched? Let me explain.

Let’s start with the conservative Alito. Had he given Schumer a direct and candid answer, it would (I’d guess) have gone something like this:

Yes, I still believe that the Constitution does not protect a right to an abortion. And this is not an "outside the mainstream" view. It was the view of the vast majority of serious constitutional scholars when Roe was decided in 1973, including pro-choice liberals such as Archibald Cox and John Hart Ely.

Opening Argument – Abortion Battles Without Much Effect On Abortions

National Journal

You might think that something huge was at stake from the sound and fury accompanying the November 30 Supreme Court argument about New Hampshire’s restrictions on minors’ access to abortion, and the pending challenge to the 2003 act of Congress banning "partial-birth" abortion.

Abortion-rights advocates warn that any decision upholding restrictions on abortion in either case would jeopardize women’s health and set the stage for evisceration of Roe v. Wade. Anti-abortion advocates portray the lower-court decisions striking down these laws before they took effect as steps toward the destruction of the American family and the legalization of infanticide.

The reality is less momentous: No matter who wins, the decisions in these cases are unlikely to harm anyone’s health, to prevent anyone who is sure she wants an abortion from getting one, or to save many (if any) fetuses. As is usual in abortion battles, the interest-group hysteria and media hype overstate what’s really at stake.

Which is not to say that nothing is at stake. In the New Hampshire case, in particular, abortion-rights groups have leveraged legitimate concern over possible medical emergencies in fewer than one in 1,000 cases into decisions by federal district and appeals courts striking down the entire parental-notification law.

So for now, at least, clinics are free to perform abortions on any 13-year-old girls who walk through their doors, with no parental or judicial involvement at all.

Based on the comments at oral argument, at least five justices seemed sympathetic to the Bush administration’s quite reasonable suggestion that they uphold the parental-notification law except in the tiny number of cases where it would dangerously delay abortions in medical emergencies.

Legal Affairs – The Drift Toward Infanticide-And How RU-486 Can Help

National Journal

The abortion-rights lobby has not yet publicly embraced the view of Peter Singer, a Princeton University bioethicist, that because "the fetus does not have the same claim to life as a person, it appears that the newborn baby does not either." Or that "killing a disabled infant is not morally equivalent to killing a person [and] often it is not wrong at all." Or that "the life of a newborn baby is of less value … than the life of a pig, a dog, or a chimpanzee." Or that "a period of 28 days after birth might be allowed before an infant is accepted as having the same right to live as others."

The Supreme Question


Al Gore saw his opening, and he took it. Campaigning last Wednesday in Backlick, Ohio, the vice president unexpectedly tossed aside the top of a scheduled speech about energy and the environment and instead launched into a passionate lecture about the importance of the Supreme Court. All morning, Gore had been asking aides to inform him as soon as the court handed down its expected final opinions of the year. At about 11 a.m., just as Air Force Two was touching down in Ohio, he got the news he’d been waiting to hear: the justices had struck down laws in 31 states banning so-called partial-birth abortions, the controversial late-term procedure denounced by abortion opponents. But the vote was close–5-4–and the vice president couldn’t wait to seize the opportunity to raise doubts about George W. Bush. The vice president immediately reworked his speech. “The next president will nominate… perhaps four justices to the Supreme Court,” Gore warned in the new, improved text. “One extra vote on the wrong side,” he said, “would change the outcome, and a woman’s right to choose would be taken away.”

Gore’s warning was an exaggeration, to say the least. In fact, six of the nine current justices have supported fairly broad abortion rights. Still, Bush chose to downplay the decision, wary of being dragged into an abortion brawl that could put him on the wrong side of public opinion, sending moderate voters–especially women–fleeing. But he couldn’t avoid the matter entirely: Bush issued a terse statement saying he would “fight for a ban on partial-birth abortion.” Later in the week he cut a deal to keep the GOP’s hard-line anti-abortion plank in the party’s platform.

NewsHour: Supreme Court – February 19, 1997

MARGARET WARNER: The first Supreme Court action we examine tonight is a decision in an abortion protest case from New York State. The decision changes the rules of engagement between abortion protesters on one side and abortion clinic workers and their clients on the other. Here to explain the ruling is NewsHour regular Stuart Taylor, correspondent with "The American Lawyer" and "Legal Times." Welcome back, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

MARGARET WARNER: Briefly, what’s the background of this case?

NewsHour: Supreme Court – Abortion – October 16, 1996

ELIZABETH FARNSWORTH: Now more on this case and other action at the court this week from NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Thanks for coming, Stuart. Tell us about the arguments in the court today about this case.

American Lawyer: They were very lively arguments today. The issue before the court focused on the so-called 15-foot floating buffer zone. The, the protesters did not appeal the order that said they can’t block people, grab people, shove people. They were saying, we ought to have a right to go up to people and speak to them, hand them literature and so forth, and this 15-foot zone prevents us from doing that. Uh, the all–eight of the nine justices were jumping in during the arguments on one side or the other, and there are about three on each side, you can tell, and about three in the middle arguing back and forth with each other, using the justices as props. And it was an exceptionally lively argument that way, a difficult one to call. I mean, in, in this case the court is fine-tuning a precedent it already laid down a couple of years ago in terms of it’s fairly clear that they can do–that the courts can do something to prevent protesters from unduly harassing women who want to go into the clinics. It’s also fairly clear they–they don’t–the courts don’t have carte blanche just to say you’ve got to stay 300 feet away, and the court is trying to decide in this case, you know, where to draw the line.

ELIZABETH FARNSWORTH: Does it make a difference that this is a case about an abortion clinic, if it were a heart clinic or something else, would it make a difference, do you think?

Give Norplant A Chance

Now that Congress and President Bill Clinton have opted to use the threat of utter destitution to dissuade poor teen-agers and women from having children on the public dole, it’s time to revive a far more humane, and perhaps more effective, proposal with the same objective.

This idea surfaced briefly and spectacularly in 1990, when the Philadelphia Inquirer suggested in an editorial that perhaps some welfare mothers should be "offered an increased benefit" if they would agree to produce effective birth control-specifically, to use the then new Norplant contraceptive, which prevents pregnancy for five years after being implanted under the skin of the upper arm.

An uproar followed. The editorial writers-who had insensitively suggested a desire to reduce births of poor black babies in particular-were savaged by many Inquirer staffers and others as racist advocates of eugenics, even of "genocide." They also caught it from some abortion rights zealots-who bridle at any suggestion that the government should seek to influence anybody’s reproductive choices by means more potent than education and contraceptive giveaways-and from conservatives- who think the only proper way to discourage teen pregnancy is to preach abstinence.

Amid national publicity, the newspaper abjectly apologized 11 days later for having printed a "misguided and wrongheaded editorial opinion."

And ever since, the whole subject has been taboo, at least in the mainstream press. Although some slate and local officials, including former Gov. William Donald Schaefer of Maryland, have proposed various Norplant incentives, few if any on the national scene have dared mention the words welfare and Norplant in the same sentence at least in combination with incentive.