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.

Consider the landmark 5-to-4 ruling in 2008 that the ambiguously worded Second Amendment protects against the federal government an individual right to bear arms. (The same five justices held last month that gun rights also apply against states.)

All nine justices claimed to be following the Second Amendment’s original meaning. Yet the bitter liberal-conservative split perfectly matched the factions’ apparent policy preferences.

After reading and rereading the 154 pages of opinions to discern who was right about the original meaning, I saw it as a dead heat. So historical research provides no escape from subjectivity. And conservative originalists’ claims of being deferential to democratic governance ring hollow after the two gun decisions and other recent rulings.

Third, even when the original meaning is clear, almost everyone rejects it as intolerable some of the time. For example, nothing in the original Constitution (which ratified slavery) or the 14th Amendment (which required only states to provide "equal protection") was originally understood to bar the federal government from discriminating based on race.

But this did not stop the court from striking down Congress’s segregation of D.C. public schools in Bolling v. Sharpe, a 1954 companion case to Brown v. Board of Education. And almost everybody now agrees that the Constitution bars federal racial discrimination.

Fourth, the accretion of precedents contrary (or arguably contrary) to original meaning pervades almost every area of constitutional law. In case after case, justices must choose whether to stray ever farther from originalism or to overrule precedents.

Imagine yourself as a justice, confronted with highly persuasive legal arguments on both sides of most big cases. How would you break the ties? By flipping coins? Or, perhaps, by persuading yourself that the interpretations that suit your policy preferences are the better ones?

This is not to suggest that judicial review is illegitimate. Americans count on the court to protect cherished rights, and the country needs an independent judiciary to check majoritarian tyranny.

The key is for the justices to prevent judicial review from degenerating into judicial usurpation. And the only way to do that is to have a healthy sense of their own fallibility and to defer far more often to the elected branches in the many cases in which original meaning is elusive.

Elena Kagan professed such a modest approach in her confirmation testimony. Yet so did the eight current justices, and once on the court, all eight have voted repeatedly to expand their own powers and to impose policies that they like in the name of constitutional interpretation.

Why so immodest? Perhaps because the justices know that as long as they stop short of infuriating the public, they can continue to enjoy better approval ratings than Congress and the president even as they usurp those branches’ powers.

The post Supreme Immodesty: Why the Justices Play Politics appeared first on Stuart Taylor, Jr..

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.

I suspect that even McCain himself might not want Roe overruled, notwithstanding his repeated assurances to anti-abortion conservatives that he does. Indeed, in a revealing 1999 newspaper interview, McCain said: "Certainly in the short term, or even the long term, I would not support repeal of Roe v. Wade, which would then force X number of women in America to [undergo] illegal and dangerous operations."

McCain has since repudiated that statement. He has also courted the Religious Right not only by choosing Palin but also by vowing to choose justices in the mold of Bush-appointed Chief Justice John Roberts and Justice Samuel Alito and by giving anti-abortion absolutists a free hand with the Republican platform.

But if McCain is elected, he would not be taking his marching orders on abortion from Palin or the platform. He still supports abortion rights in cases of rape or incest. He voted last year to fund some embryonic-stem-cell research. He is well aware that a decision overruling Roe would be hugely unpopular, hurting Republican candidates at all levels for years. And in any event, McCain could get Roe overturned only if an improbable chain of events were to unfold.

First, it is unclear whether Roberts and Alito, although undoubtedly conservative, will ever join the campaign by Justices Antonin Scalia and Clarence Thomas to overrule Roe. Second, it’s very doubtful that McCain could get a Democratic Senate to confirm any nominee who is likely to overrule Roe. Third, McCain — who is far more focused on foreign threats — seems unlikely to invest much political capital in battling for such a nominee.

To put this in perspective, it seems to me less likely that Roe will be overruled in the next 10 years than it is that terrorists will detonate a nuclear bomb in Manhattan or Washington. (See Jeffrey Goldberg’s chilling analysis of that danger in a September 9 New York Times op-ed.) Choosing the candidate most likely to prevent such a catastrophe is far, far more important than choosing the one whose position on abortion seems preferable.

Even if the Court were to overrule Roe, that would not make abortion illegal. It would merely give states the option of banning or severely restricting abortion. Most would not do so. And women in anti-abortion states would remain free to get abortions elsewhere.

Roe has been on the books for 35 years. The Court has repeatedly reaffirmed its "essential holding." The public is not clamoring for change. 

This is not to deny that new restrictions could have a heartrending impact on women and girls who are desperate to have abortions but unable to cope with legal hurdles. The same is true of any restriction, however, including the current laws against infanticide-like abortions of viable, 8-month-old fetuses. Unless we are to treat all unborn fetuses as insignificant clumps of tissue, the law must draw lines.

Obama’s record suggests that he would draw those lines far to the left of center of mainstream public opinion. He said in July 2007 that "the first thing I’d do as president is sign the Freedom of Choice Act." That 19-year-old proposal, which has never passed Congress, would nullify the popular law against federal funding of abortions; end the even more popular federal ban on "partial-birth" abortion; and sweep away the broadly popular state laws requiring parental notification or consent (or judicial approval) before a minor can obtain an abortion and 24-hour waiting periods before any woman can obtain one.

Beyond that, as an Illinois legislator, Obama led the way in killing a 2003 Illinois bill nearly identical to the federal Born-Alive Infant Protection Act of 2002, which passed the U.S. Senate by 98-0. Both laws require that aborted fetuses that are alive — even if they are too premature to be "viable" (capable of surviving more than a few hours) — be given appropriate medical care and treated as full persons under the law. This has opened Obama to criticism by the National Right to Life Committee that his position was so extreme that he considered "a breathing, squirming, fully born pre-viable human baby [as] still covered by Roe v. Wade."

Obama has accused the NRLC of "lying" about his position. And he and his campaign have provided various rebuttals, including a claim that he would have supported the federal bill, and opposed the Illinois bill only because it lacked a provision specifying that abortion rights would not be affected. But the NRLC has produced documents showing that the state bill that Obama opposed in 2003 did contain such a provision, and that he knew it.

Obama has sought to sound more moderate on abortion this year, especially since he locked up the nomination. He drew criticism from abortion-rights activists and arguably departed from current law by saying in July that "mental distress" — which he later amended to merely "feeling blue" — should not be a legal justification for aborting a viable fetus.

What does the public want? It is ambivalent. Polls show that most respondents, by ratios that are sometimes close to or above 2-to-1, do not want to see Roe v. Wade overruled. But paradoxically, majorities do support some restrictions (such as spousal-notification requirements) that are barred by current law, which is already more restrictive than the original Roe; decisions over the past two decades have somewhat narrowed Roe‘s protections while preserving its "essential holding."

Indeed, a majority of adults told Gallup pollsters in May that abortion should be either illegal or "legal only in a few circumstances." A majority told a CBS News poll in October 2007 that abortion should be either banned entirely (4 percent) or permitted only to save the woman’s life (16 percent) or in cases of rape or incest (34 percent).

Such polls can be read as showing that most Americans oppose most of the abortions allowed by current law. But majorities in some other polls say that abortion should be legal in all or "most" cases. And only 31 percent told Gallup in January that abortion laws should be made "more strict," while 42 percent chose "remain as they are" and 21 percent chose "less strict." As for whether they would "only vote for a candidate who shares your views on abortion," only 13 percent of all adults (in May 2008) said yes.

I lean to the abortion-rights side of the policy debate, with increasing misgivings as the developing fetus looks less like a clump of cells and more like a baby. As a matter of constitutional interpretation, however, I agree with the many scholars who saw it in 1973 as a profoundly unwise, undemocratic, and disruptive usurpation of legislative power for the Court to strike down the abortion laws of all 50 dates and create overnight an abortion right far broader than any other nation recognizes.

But Roe has been on the books for 35 years. The Court has repeatedly reaffirmed its "essential holding." Scores of millions of women see legal abortion as their birthright. The public is not clamoring for change. Given all of this, it would be a radical and destabilizing move to overrule Roe now. I hope that Roberts, Alito, and any McCain nominees understand that.

It would also be a bad idea for Congress to flout public opinion by sweeping away with a party-line vote virtually all of the modest restrictions on abortion rights that the justices have upheld since Roe. I hope that many Democrats, including Obama, understand that, too.

CORRECTION: The original version of this column misstated Obama’s role opposing the 2003 Illinois bill.

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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.

First, the gist of the Greenburg-Wittes debate: She foresees that the 56-year-old Alito will tip to the conservative side those big 5-4 decisions that O’Connor had tipped to the liberal side. In addition, she says, the 52-year-old Roberts is more persuasive, more energetic, and no less conservative than his predecessor as chief justice. Third, both new justices have such strong conservative principles and legal minds that they are unlikely to drift leftward as have other Republican appointees, including John Paul Stevens, O’Connor, Anthony Kennedy, and David Souter. But Roberts and Alito are also more collegial and less confrontational than conservative Justices Antonin Scalia and Clarence Thomas, and thus less likely to alienate their more moderate (and liberal) colleagues.

Wittes responds that an improbable number of stars must align to bring about a dramatic transformation. The Court still has only four conservatives, he points out. Kennedy, now the key swing justice, has voted with the liberals on four of the five hottest issues, as detailed below, and is only shakily allied with the conservatives on the fifth. Roberts and Alito, unlike Scalia and Thomas, have not so far acted like conservative warriors itching to mow down forests of liberal precedents. To the contrary, the chief justice says his goal is to promote greater consensus by deciding cases on narrow, relatively uncontroversial grounds.

Then there are the wild cards. While liberal Justices Stevens and Ruth Bader Ginsburg are 86 and 73 years old, respectively, Scalia and Kennedy are both 70. Who will outlast whom? And who will fill any vacancies?

A nice debate. But it’s time for hard predictions. Here are mine, on the five (currently) hottest issues.

Abortion. The Roberts Court has already voted in a big abortion case, on the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003. But we probably won’t know who won until June.

Pro-choicers noisily fear, and pro-lifers hope, that the Court will uphold this congressional ban on a late-term abortion procedure likened by critics to infanticide because the fetus is destroyed when mostly outside the womb. In the process, many predict, the justices will overrule a major 2000 decision striking down a very similar Nebraska ban. O’Connor was the fifth vote then. Alito is now, and this will be the first salvo in a conservative assault on Roe v. Wade.

My predictions are different: The Court will indeed uphold the federal "partial-birth" ban—thanks to the Alito-O’Connor swap—but only by construing it so narrowly that it will have very little effect. And the Court will never overrule Roe v. Wade.

Specifically, the justices will limit the federal ban to "D&X," or dilation and extraction, abortions, the most grisly late-term procedure, and exempt "D&E," or dilation and evacuation, abortions, which are much more common. The Court may also carve out an exception to the ban for those exceedingly rare cases in which more than a few medical experts consider D&X safer than D&E. The justices will narrow but stop short of overruling the 2000 Nebraska decision.

During the argument on this case, Roberts seemed to be pushing for a narrow interpretation of the federal ban. Such a split-the-difference approach might appeal to the conflicted Kennedy; he is the fifth pro-Roe vote, but he wanted to uphold the Nebraska "partial-birth" ban. In future cases, the justices will narrow Roe v. Wade (as they started doing in 1992) but strike down any state laws making it difficult for most women to get abortions.

Race. The justices have already cast their votes in a major race case. During a December 4 oral argument, five member of the Court seemed poised to strike down programs that promote integration in the Louisville, Ky., and Seattle school systems by considering students’ race in assigning them to schools. The Alito-O’Connor swap will prove decisive here as well.

But will the Court issue a broad declaration casting grave doubt on the constitutionality of all government affirmative-action preferences? Or will it hand down a more fact-bound ruling that these two programs are not "narrowly tailored" enough?

I predict a narrow ruling. That’s the direction Kennedy, who in the past has joined conservatives on racial issues—with reservations—seemed headed during the argument. And while Roberts and Alito clearly don’t like racial preferences, they do preach judicial restraint. So I’d be surprised to see either, let alone both, join Scalia and Thomas in an absolutist, color-blind-Constitution assault on affirmative-action programs and precedents.

I also predict that in years to come the Court will strike down some but not all governmental preferences based on race, while sharply limiting the 2003 O’Connor opinion that has been the high-water mark for affirmative action. This 5-4 decision upheld the very large preferences used by the University of Michigan’s law school.

The new justices will circumvent this precedent without overruling it. That won’t be hard to do. They need only take seriously the logic of a related 5-4 decision issued on the same day. It struck down the similar but less-well-camouflaged preferences used by Michigan’s undergraduate school. All eight justices besides O’Connor saw her distinction between the two programs as cosmetic and logically incoherent. So a conservative (or liberal) majority could use either precedent to trump the other.

Religion. Alito and Roberts will probably strike down fewer holiday nativity scenes, Ten Commandments displays, and student-initiated prayers than the O’Connor Court did. The Pledge of Allegiance ("under God") is safer now. So are publicly funded vouchers for students to attend religious and other private schools.

But this would hardly be a lurch toward theocracy. The Court’s religion-clause precedents are a logically inconsistent mishmash of mushy moderate compromises. O’Connor upheld vouchers and tipped this way or that in other cases based on minute distinctions. Kennedy, too. He would block any dramatic move to the right. And neither Alito nor Roberts seems bent on making one.

Gay rights. For all of the sound and fury, the Court is not the most important actor here. It has no power to review states’ same-sex marriage laws and—barring a liberal takeover—will not invent a federal right. It has issued a grand total of three rulings on the constitutional rights of gay people. All were of mostly symbolic importance. The third, in 2003, overruled the first by striking down the very few remaining state bans on homosexual sodomy. Five members of that majority remain. The new justices would not have joined them but won’t go out of their way to overrule them.

Presidential power. Here, Alito and Roberts could make a big difference. They have manifested fairly broad views of presidential power. But they would need a fifth vote to prevail.

Since 2004, Kennedy has joined O’Connor and the four liberals in three rulings rebuffing Bush’s sweeping claims of unilateral power over anyone he labels an "enemy combatant." Without yet confining Bush very much in practice, they have drawn lines that he may not cross. Those lines may not hold if one of the justices retires this year and if Bush can get his kind of nominee through the Senate. But the odds against both of those things happening are very long.

If you want to bet against these predictions, please send me yours. They will be sealed in a marble vault until July 2017 and then opened to pick winners and losers. Stakes and judges to be identified before unsealing. But although I lean to the Wittes view, I would not want to place a big bet against Greenburg. A hot-fudge sundae, perhaps?

The post The Supreme Court: Place Your Bets appeared first on Stuart Taylor, Jr..

"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.

They said, and I agree, that this divisive issue should have been left to the democratic process in the states — most of which would have legalized abortion long before now, both for their residents and for visitors from anti-abortion states. This remains the view of many pro-choice liberals today. And seven of the current justices, including Sandra Day O’Connor and Ruth Bader Ginsburg, have indicated disagreement with Roe.

But I also recognize that this is a precedent that the justices have repeatedly and forcefully reaffirmed over 33 years. And although most Americans favor some restrictions on abortion that Roe forbade, the vast majority don’t want Roe itself overruled.

It would be improper for me to prejudge any case. But I can tell you that I have no desire to destabilize the law and throw the country into turmoil. And I fear that overruling Roe would do both.

This is probably pretty close to the (private, if not public) view of most constitutional experts today. But in the strange cauldron that confirmation politics has become, it would probably doom Alito’s nomination.

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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.

Justice Sandra Day O’Connor, who joined her four more-liberal colleagues five years ago in a 5-4 decision striking down a Nebraska law against "partial-birth" abortion, seemed to be leaning to the conservative side in the New Hampshire case, Ayotte v. Planned Parenthood. She pressed a lawyer for the abortion-rights groups on whether the remedy that they had obtained in the lower courts — "the invalidation of the entire statute in all of its applications" — was really necessary to protect minors in a few medical emergencies.

If O’Connor is replaced by Judge Samuel Alito before the case is decided, and if the other justices are evenly divided, the Court could set the case for reargument, with Alito participating. He seems at least as likely as O’Connor to be receptive to the administration’s approach.

Alito’s record does not, on the other hand, necessarily suggest that he still favors overturning Roe v. Wade, as he famously did in 1985. Nor did any member of the Court suggest that the New Hampshire case be used as a vehicle for re-examining Roe.

There is actually a fair amount of common ground in the case. The abortion-rights groups concede that under the Court’s precedents, a state can impose a general rule requiring almost all minors seeking abortions to first notify one or both parents, or to obtain permission from a judge — as New Hampshire and 43 other states have done.

And the administration concedes that the precedents give minors and their doctors a constitutional right to proceed without notifying a parent or seeking judicial approval in any medical emergency in which the attendant delay would harm the girl’s health.

The main disagreement is pretty legalistic. The abortion-rights groups want the Court to strike down the entire parental-notification law "on its face" — even though it would clearly be valid in the vast majority of cases — because it lacks an explicit health exception. (It does have a narrow exception for abortions necessary to save a girl’s life.)

The administration says, as does the state, that the courts should allow the New Hampshire law to take effect and should craft their own medical-emergency exception.

Abortion-rights advocates would prefer a broad health exception. But the New Hampshire law already authorizes judges to consider health problems when deciding whether it would be in the best interests of a minor to allow her to have an abortion without notifying her parents.

So the only tension between the New Hampshire statute and the precedents barring any abortion restriction dangerous to a girl’s health is the statute’s failure to allow for an immediate abortion in any medical emergency in which delay would cause health problems.

The administration’s approach would fix that flaw. But abortion-rights absolutists claim that it would preclude any judicial intervention "until a minor [is] already unconstitutionally endangered and in the midst of a medical crisis," in the words of a New York Times editorial.

This is wrong, as Solicitor General Paul Clement made clear, both in his friend-of-the-court brief and at oral argument.

"Courts may be understandably reluctant to insist that a plaintiff suffer through an emergency before the plaintiff can challenge a statute," Clement wrote. But the solution, he said, is not to strike down the entire law "based on the mere possibility of some unconstitutional applications." It is for the courts to carve out a medical-emergency exception by allowing abortion providers (and/or minors) to file and win individual lawsuits or class actions seeking "declaratory or injunctive pre-enforcement relief … before irreparable injury has actually been suffered."

Such a decision would hold the New Hampshire law unconstitutional "as applied" to any cases in which the delay necessary to obtain judicial permission would endanger the girl’s health.

Health problems that require immediate abortions — such as hypertension induced by pregnancy, and infections of the placental lining — are exceedingly rare. Minnesota, Montana, and North Dakota have had parental-notification laws with no explicit health exception for more than 15 years with no evidence of ill effects. Indeed, the justices upheld the Minnesota law in 1990 without even discussing the absence of an explicit health exception.

So why are abortion-rights advocates so eager to knock off the similar New Hampshire law in its entirety? In their brief, Planned Parenthood of Northern New England and the other plaintiffs make the rather Orwellian claim that this junk-the-whole-thing approach would be most consistent with "judicial restraint."

Nonsense. Judicial restraint is anathema to these groups. The real explanation is that many of them are implacably opposed to even the most reasonable, popular, clearly constitutional, democratically adopted restrictions on abortion. They prefer no parental-notification law at all, for as long as possible, over a law whose constitutional flaw has been judicially repaired.

And they know that if the justices strike down the entire New Hampshire law, forcing its supporters to start over again, the supporters might not be able to get a new, constitutionally impeccable parental-notification law through the closely divided state Legislature — or past the new governor, Democrat John Lynch. He opposes the law and has urged the justices to strike it down.

The justices seem unlikely to oblige. But the federal "partial-birth" abortion law, which they have been asked to review and probably will review next year, presents more difficult problems.

The federal law is quite similar to the Nebraska statute that the justices struck down five years ago, in Stenberg v. Carhart, partly because it lacked an exception for cases in which the "partial-birth" procedure is best for the health of the woman.

The administration argues that the justices should defer on questions of fact to Congress, which contradicted Stenberg’s factual premise by finding, after detailed hearings, that "partial-birth abortion is never medically indicated to preserve the health of the mother."

But if that’s so clear, then why would any competent doctor think that it is medically indicated sometimes, as several have sworn?

And what exactly is the point of this law if — as the congressional findings indicate — it would not save a single fetus? Supporters say the point is that this procedure, used in some second- and third-trimester abortions, is "abhorrent," as Justice Anthony Kennedy wrote in dissent in StenbergAbhorrent it is. But all second- and third-trimester abortion procedures are abhorrent. See next paragraph for details; skip it if you prefer not to be horrified.

Why make it a crime for a doctor to use the "partial-birth" procedure to kill a second-trimester fetus by tearing open its skull after pulling it out of the womb intact, while the "D&E" procedure, used in most second-trimester abortions to dismember and kill the fetus before pulling it out of the womb, remains perfectly legal?

Richard Posner, a Reagan-appointed federal appeals court judge, once called this distinction "arbitrary to the point of irrationality." It will be interesting to see what Bush-appointed Chief Justice John Roberts and Justice Alito (if confirmed) will make of it.

The post Opening Argument – Abortion Battles Without Much Effect On Abortions appeared first on Stuart Taylor, Jr..

But some abortion-rights groups do seem to be inching toward a right to choose infanticide, especially when a baby is born with severe disabilities. So do some members of Congress. And the Supreme Court’s 5-4 decision on June 28 that finds a right to "partial-birth" abortion leaves even some supporters of early abortion (including me) worried that the Justices are vitiating the traditional legal and moral taboos against baby-killing.

Most of us don’t want to think about such things, any more than we want to look at pictures of aborted late-term fetuses. But the when-does-abortion-become-infanticide question keeps coming back, currently in the form of the Born-Alive Infants Protection Act. Sponsored by anti-abortion Rep. Charles Canady, R-Fla., the bill sailed through the House on Sept. 26 by a 380-15 vote. It specifies that when a baby (or a fetus, if you prefer) has been "born alive"-even if destined to expire within minutes or hours-he or she is a "person" with the same rights to life, care, and other legal protections as any other human being.

Who could be against that? The National Abortion and Reproductive Rights Action League could. Although it has lately muted its objections, NARAL warned in a July 20 press release that this is "yet another anti-choice assault" on "the basic tenets of Roe vs. Wade." The reason? The bill "would effectively grant legal personhood to a pre-viable fetus."

NARAL thereby implies that abortion rights include a right to kill (whether overtly or by neglect) an unwanted "pre-viable fetus" after complete delivery, as the newborn lies naked on the table, gasping for breath, heart still beating. In NARAL’s world, such a baby seems to have no more legal protection than a malignant tumor.

(The Canady bill defines born alive as a baby who after separation from his or her mother "breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.")

NARAL’s position, albeit chilling, is understandable. For if a woman and her doctor have no right to kill a baby (or fetus) once he or she is outside the woman’s body, then where does that leave the right to kill that same baby (or fetus) moments earlier, when he or she is unborn or partially born? What about the status of identical twins during the minutes after one has been delivered? If the first twin is already a person with a right to live, can the second in line nonetheless be killed (as current Supreme Court doctrine suggests) so long as he or she remains unborn or partially born?

Abortion-rights absolutists dismiss such hypotheticals as far-fetched mind games irrelevant to the real-life choices faced by pregnant women, doctors, and lawmakers. There is a bit of truth to this: Even NARAL has never argued overtly for a right to kill a viable fetus after birth. So the Canady bill’s most obvious impact could be to bar abortionists from accelerating (whether actively or through neglect) the inevitable deaths of those (presumably rare) pre-viable fetuses who-because of botched abortions, induced labor, or spontaneous miscarriages-did not already die before or during delivery.

Such cases do occur, however-perhaps by the hundreds. Nurses have testified that "induced-labor abortions" are sometimes performed by using a drug to cause a woman’s cervix to open so that she will deliver a premature baby who will die during the birth process, or within a few minutes or hours afterward. One such baby was accidentally thrown in the garbage.

Moreover, it seems probable that, in practice, hundreds (if not thousands) of viable fetuses are aborted, and that some of them are born alive and then left to die unattended, or even killed. Here’s why: 1) It is typically unclear at the time a 23- to 25-week fetus is aborted whether he or she could survive outside the womb. 2) Supreme Court rulings have made it almost impossible to disprove an abortionist’s claim (however implausible) that a fetus was not viable when killed. 3) Under Roe vs. Wade, a doctor can abort even a clearly viable fetus whenever necessary (in the view of the doctor) to protect the woman’s life or health. 4) The Court’s sweeping definition of threats to a woman’s "health," as including anything that an abortionist finds detrimental to her "emotional [or] psychological … well-being"-the burden of raising a disabled child, perhaps?-renders largely illusory the notion that current law restricts the abortion of viable fetuses at all. 5) Many abortionists might well be reluctant to tell a woman who came in for an abortion that something went wrong and she is getting a live baby instead.

Now consider the established right to abort (and kill) even a viable fetus minutes before birth, or during birth, in conjunction with NARAL’s implication that whether a fetus (at least a pre-viable one) has been born alive is irrelevant to his or her legal status. How big a leap is it to infer (as does Peter Singer) that there should also be a right to kill a viable fetus-a baby-immediately after live birth?

Is this drift toward infanticide the only alternative to the admirably principled but (to me) overly absolutist view of people such as Douglas Johnson, of the National Right to Life Committee, that the deliberate abortion even of an embryo little larger than the period at the end of this paragraph is the taking of human life and should be illegal? I think not.

To be sure-as Johnson argues with great cogency, and as Peter Singer would probably agree-it is impossible to identify any nonarbitrary magic moment when a fertilized egg becomes a "person" during the 10 months between intercourse and the 28th (or 27th, or 29th, or 60th, or 600th) day after birth. But the public’s approval of a right to early abortion and its disapproval of late-term abortions have considerable intuitive moral appeal. A born-alive baby is not quite the same as an unborn fetus; a nonviable fetus is not quite the same as a viable one; a minuscule embryo that looks nothing like a baby is not quite the same as a 20-week, 10-inch fetus looking very much like a baby; and so on. Even most anti-abortion advocates, who would call the deliberate killing of a month-old baby "murder" (as would I), avoid that word when referring to the abortion of a 2-week-old fetus.

Why does so substantial a minority of abortions take place several months (not just weeks) into pregnancy? Largely because it’s not always easy-especially for teenage girls and poor or unsophisticated women-to get early surgical abortions. It’s not easy to travel a long distance to one of the shrinking number of abortion clinics, or to run a gauntlet of pickets screaming "murderer," or to have one’s womb probed and evacuated by a stranger with gleaming metal instruments.

The best way to minimize the number of late-term abortions would be to make early abortion easier and more private. And the best way to do that would be to move rapidly toward approval and broad distribution of the so-called abortion pill (otherwise known as RU-486 or mifepristone), a prescription drug. The Food and Drug Administration did just that on Thursday by approving the use of RU-486 in the United States. The FDA will allow the drug to be distributed only to doctors who can operate, in case a surgical abortion is needed.

Until now, efforts to market such abortion pills here have been blocked by the passionate opposition of anti-abortion groups. But drug-induced abortions are deemed safe and legal in France and some other countries. If they become widely available here, the results will include both reducing the demand for late-term abortions and undermining the arguments that such abortions are necessary to accommodate desperate women and girls who lacked the resources to act sooner. Public horror at the current drift toward infanticide will increase. And the Supreme Court will eventually limit or end its protection of late abortions.

Such a scenario would not please either abortion-rights or anti-abortion absolutists. But it might be the least bad outcome for those of us who see a big difference between an embryo and a baby.

The post Legal Affairs – The Drift Toward Infanticide-And How RU-486 Can Help appeared first on Stuart Taylor, Jr..

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.

All week, the slew of decisions and emotional dissents handed down from the red-draped chamber of the Supreme Court reverberated across the country. The justices curbed the rights of anti-abortion protesters, allowed the Boy Scouts of America to bar gay men as Scoutmasters and reaffirmed that police must keep reading suspects the famous Miranda warnings. In some cases–including a decision allowing public money to be used to buy computers and books for parochial schools–the conservative justices won. Yet the court clearly demonstrated that it is hardly the cadre of rigid conservatives some in the press make it out to be. In several recent rulings, the justices seemed downright liberal, as in their unpopular decision barring student-led prayers at public-school football games.

The nine justices are often said to be split into two ideological camps: the five conservatives versus the four liberals, which helps explain why the court is so often divided 5-4. But, in fact, two of the so-called conservatives–Sandra Day O’Connor and Anthony Kennedy–are relatively centrist, usually taking positions remarkably in sync with (and sometimes to the left of) public opinion. Shifting alliances are common, with conservatives joining liberals in high-profile cases. In one, the court struck down an act of Congress curbing sexually explicit cable-television programming that might be seen by children. In another, it stressed that “grandparents’ rights” laws can’t interfere with a parent’s rights to raise his or her children.

In the middle of an election year, last week’s decisions were an abrupt reminder of just how quickly, and unpredictably, the Supreme Court can upend the social landscape–and how big an impact the next president could have in influencing the court’s direction. The most controversial of the opinions, partial-birth abortion and Boy Scouts, resulted in familiar 5-4 splits between the court’s more liberal and more conservative members, except that in the abortion case, the five votes came down on the liberal side. That tenuous, one-vote balance of power could soon change. In the next four years it is likely that one or more of the current justices will retire, giving the next president at least one court pick. If that happens, a single strategic appointment–Gore replacing a conservative with a liberal or Bush swapping a liberal for a conservative–could decisively tip the court to the left or right. The last time the court was at such a tipping point was 1987, when Justice Louis Powell, a moderate, retired. Ronald Reagan nominated Robert Bork, a strong conservative who would have shifted the court dramatically to the right. But the Senate rejected Bork and eventually confirmed the more moderate Kennedy. This time, a new justice could be the fifth vote to entrench affirmative-action preferences or wipe them out; uphold tuition vouchers for religious schools or rule them unconstitutional; expand abortion rights or reinstate late-term restrictions.

Political professionals say that, despite its obvious importance, the composition of the court remains a little too abstract, a little too hypothetical, for most voters trying to pick a president. A NEWSWEEK Poll shows just 36 percent of voters consider Supreme Court nominees “very important” in choosing a candidate. Even so, with the public loudly complaining about how hard it is to tell Bush and Gore apart, the Supreme Court may yet emerge as the campaign’s sleeper issue, and one that most clearly defines what the candidates stand for in the minds of many moderate Americans. Bush has said that he would nominate only “strict constructionists” to the bench, justices in the mold of Antonin Scalia and Clarence Thomas, the court’s two most ardent conservatives. Gore, meanwhile, has said his judicial role model is the late Justice Thurgood Marshall, one of the most liberal, activist judges in the court’s history. The candidates’ ideas about what makes for a good justice are starkly different, and show just how dramatically a single robe change could alter the law of the land on the most difficult–and important–issues in America, perhaps for decades to come.

RACE

A One-Vote Swing Could Break the Logjam
In recent years the Supreme Court has taken on few controversial racial-preferences cases, though several have come over the threshold. Why? The current nine justices are sharply split on the issue. The court’s conservatives–Chief Justice William Rehnquist and Justices Kennedy, Scalia and Thomas–usually vote to strike down racial preferences both in government programs and in race-based election districts. On the other side, the court’s more liberal justices–John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer–believe preferences are still necessary to make up for a legacy of discrimination. That has left one justice in the middle: O’Connor, who is conflicted on the issue. She has cautiously curbed affirmative-action programs, and voted to strike down some racially gerrymandered election districts. But she has not been as firmly opposed to preferences as her more conservative colleagues. Unable to figure how O’Connor might come down on such cases, the other justices seem reluctant to take them on–perhaps because both the liberal and the conservative factions are worried that she’ll vote with the other side.

Without strong direction from the court, racial-preference laws are enforced unevenly. Public universities in most states continue to use racial preferences in admissions–but not in Texas, Oklahoma and Louisiana, where a federal appeals court ruled the practice was unconstitutional. When the University of Texas filed an appeal, the Supreme Court refused to take the case. A one-vote swing could break the logjam, either putting the court firmly behind affirmative-action preferences or putting such measures in danger of extinction.

RELIGION

Putting Church and State in the Balance

The court has been far more decisive about prayer in school. Two weeks ago it knocked down attempts by a Texas high school to have an elected student lead a prayer before football games. The decision extended a line of rulings since 1962 barring state-sponsored school prayer. But the justices had a harder time agreeing where to draw the line on another hot issue: government aid for parochial schools. In last week’s decision, which allowed public funds to pay for computers and books to be used in religious schools, the court was closely split. Four of the justices in the majority, Rehnquist, Scalia, Kennedy and Thomas–argued for opening the door wide to government support for religious schools and organizations, as long as similar secular groups receive the same benefits. In a forceful dissent, Stevens, Souter and Ginsburg criticized the conservatives’ opinion as radical and unconstitutional. O’Connor, joined by Breyer, agreed with the conservatives that government money could be used to buy things like computers and books for secular instruction; but in a separate opinion, they sided with the more liberal dissenters’ argument that directly supporting religious activities would be blatantly unconstitutional. In the future, O’Connor and Breyer signaled they would oppose any parochial-aid program that, in their eyes, jeopardized the wall between church and state. Add a strong Gore liberal or Bush conservative to the mix, and many church-state issues–including the constitutionality of tuition vouchers–could be up for grabs.

FEDERAL POWER

Has Congress Become Too Powerful and Arrogant?
The court’s five most conservative members have hung together most conspicuously in their efforts to limit congressional power over state matters. This year, for example, the court struck down a law allowing victims of rape and domestic violence to sue their attackers in federal court, ruling that crime and punishment in such local criminal cases should be settled by the states–without interference from the federal government. In a different kind of states’ rights case, the court also barred Congress from allowing state employees to bring federal age-discrimination suits against the states they work for. In 1997 it ruled Congress violated states’ rights when it required local sheriffs to help enforce the Brady gun-control law.

The court’s more conservative members believe Congress has become too powerful and arrogant, enacting laws that disregard the Constitution and are “downright bizarre,” as Scalia put it in an April speech. Since 1992 the court has struck down some 10 federal laws in an attempt to confine Congress to the specific powers spelled out in the Constitution. Yet the future of this conservative cause could well rest on the next president’s appointees. A conservative replacing a liberal would create a more solid core of six justices sympathetic to states’ rights. But a liberal replacing a conservative would bring Rehnquist’s string of 5-4 victories to an abrupt halt, shifting power back to the Capitol.

ABORTION

Roe v. Wade in the Cross Hairs: An Elusive Target
Despite Gore’s dire warning that one more conservative on the court would spell the end of Roe v. Wade, abortion rights are probably safe for at least the next four years, no matter who wins the White House in November. Last week’s ruling protecting partial-birth abortions was 5-4, giving Gore the opportunity to fan fears that abortion rights were hanging by a single vote. In reality, only three of the nine justices would overrule Roe. Kennedy, a Roe supporter, sided with the anti-abortion conservatives last week because, as he wrote in his dissent, many “decent and civilized people”– including some pro-choice moderates like Kennedy–find this particular late-term procedure “so abhorrent as to be among the most serious of crimes against human life.”

In cases involving earlier-term abortions, Kennedy has sided with the five other pro-choice justices, which means Roe defenders have a solid 6-3 majority. In order for Gore’s abortion scenario to come true, Bush would have to win the election, hope that two pro-choice justices retire, pick two ardent pro-life nominees and then get them through ferocious Senate confirmation battles. If all those things were to happen, then the court might overturn Roe–leaving it to the states to allow or prohibit abortion. But don’t lose too much sleep–or get too excited–just yet.

GAY RIGHTS

A Very Fine Line on Discrimination
The court has never granted gays and lesbians the same broad protection from discrimination that racial minorities and women have had for decades. Yet at least six of the current justices are sympathetic to gay rights. In 1996 the court expanded the rights of homosexuals when it struck down an amendment to the Colorado constitution that barred the state and local governments from punishing landlords and employers who discriminated against gays. Last week’s 5-4 decision allowing the Boy Scouts to ban gay leaders was portrayed as a step in the opposite direction. But the decisions were actually consistent. In last week’s case, the court ruled that the Scouts–a private group protected under the First Amendment’s freedom of association–could exclude gays as Scoutmasters since their very presence would send a message contradicting the group’s belief that homosexuality is immoral. In the eyes of the court, that’s far different from the government discrimination in the Colorado case. “It appears that homosexuality has gained greater social acceptance,” wrote Rehnquist in the court’s ruling. “But this is scarcely an argument for denying First Amendment protection to those who refuse to accept those views.” Another liberal on the bench, however, and the scales would have tipped the other way–expanding homosexual rights and making it more difficult for groups to use freedom of association as an excuse to discriminate against gays.

Encouraged by last week’s decisions, Gore is now preparing to make the Supreme Court a centerpiece of his campaign, despite jittery aides who think the topic might be a dud with the public. “It’s a hard issue,” says one adviser. The political pros “just don’t see it.” Gore wants to deliver a major speech on the court sometime in the next couple of weeks, using the opportunity to paint a nightmarish picture of what a Bush-packed court would mean for America. It’s a pitch aimed directly at the millions of undecided women and swing voters who fear a right-wing court. Liberal groups like People for the American Way and the National Abortion and Reproductive Rights Action League will bolster the message with ad campaigns pushing the court as an issue.

The Bush camp would rather change the subject. The candidate has remained vague on the issue of the court, saying little more than he doesn’t believe in “legislating from the bench.” After last week’s opinions, some conservative strategists began urging Bush to find a way to take the offensive–trying to make Gore look heartless for championing the unpopular late-term abortion procedure, or depicting him as a liberal who’d pack the court with Constitution-trashing justices. But for now, Bush is reluctant to be drawn into a war of words over nominees, a fight that could scare moderates he needs to win the White House. He understands the danger: talk too loudly now about the justices he wants, and he may never get the chance to appoint them.

The post The Supreme Question appeared first on Stuart Taylor, Jr..

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

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

STUART TAYLOR: Beginning in about 1990 Operation Rescue and other anti-abortion groups started protesting outside some clinics in Western New York State near Buffalo and Rochester. And there was lots of obstructive conduct, lots of abusive, intimidating conduct, as well as traditional free speech type protests the court found today. The federal district judge, entertaining a lawsuit by the clinics and women seeking abortions, found that it was necessary to order, to issue an injunction ordering various forms of protest stopped. No obstruction, he said, no intimidating gauntlets, and those provisions are not challenged in the court today, but he also found that it was necessary, given the history of behavior, to have two so-called "buffer zones." One was a so-called 15-foot "fixed buffer zone" around clinic and driveway entrances; that protesters just couldn’t come closer than that. The other was a so-called 15-foot "floating buffer zone," sort of an invisible circle around every person walking into the clinic or walking out, every car coming in and coming out, and that protesters weren’t allowed within that area, with an exception. Both buffer zones, he said, up to two so-called "sidewalk counselors," could come into those areas, hand out leaflets, try to talk to people, but they would have to cease and desist and retreat to beyond 15 feet if the people said get out of my face, I don’t want to talk to you.

MARGARET WARNER: So what did the court say today?

STUART TAYLOR: The court upheld part of it and struck down part of it. They struck down the so-called 15 foot floating buffer zone in its entirety by a vote of eight to one. And the main rationale was it restricted more speech than necessary to serve the objective of making it possible for people to enter and leave the clinics without being obstructed or harassed. And in particular, Chief Justice Rehnquist, who wrote the opinion, stressed that sidewalk protests, leafleting, is at the heart of the First Amendment, is protected activity, people have a right to do it, and that it would be very difficult for someone who wanted to do that to know exactly where he could be and where he couldn’t be when people are walking in and out of these clinics all the time. So he’s following someone from a distance of 15 feet. Somebody else comes out; suddenly you can’t be there. So they struck that down. A different majority of the court, also with Rehnquist writing the opinion, ruled six-three that the so-called "fixed buffer zone" was okay; that they basically held that the pattern of obstruction and harassment in the past showed that it was necessary to just keep these people a certain distance from the entrances in order to let people enter and leave without being obstructed.

MARGARET WARNER: Did the court address how close a protester can come to a clinic worker or a patient? If there’s no longer this bubble, this floating buffer zone, how close can a protester come?

STUART TAYLOR: They can come as close as they want, short of obstructing and harassing, which gets to be a subject of judgment at some point, if you’re sitting there, screaming in somebody’s face, except for they have to stay 15 feet away from the entrances, and with the exception of the two sidewalk counselors unless they’re asked to leave. The court did not lay down any kind of rule–15 feet is always okay if it’s fixed, never okay if it’s floating. It was very dependent on the background of the case, the kind of behavior that had gone before, and the–sort of the geography of the layout. Fifteen feet made sense under the circumstances.

MARGARET WARNER: So, in other words, this court ruling doesn’t say that every abortion clinic in the country is automatically entitled to a fixed buffer zone?

STUART TAYLOR: It certainly does not. And the court emphasized two competing values. One of them is the right of protesters to protest and speak and make themselves heard by people who don’t want to hear them. The other is the right of people seeking abortions or anybody else who wants to carry on lawful activity not to be obstructed and harassed. And in each case, they will draw lines, depending on the facts.

MARGARET WARNER: Okay. Now let’s look at a second case in which the court heard oral arguments today. This closely-watched case was brought by the archbishop of San Antonio against a small town in Texas. We start with this backgrounder from Charles Krause.

CHARLES KRAUSE: The controversy began when St. Peter the Apostle Church, located in Boerne, Texas, just outside San Antonio, outgrew its 230-seat sanctuary several years ago. What it hoped to do was tear down all but the facade of its Spanish-style church built in 1923 to construct a new building triple the size. The city authorities objected, saying the structure was a historic one, and denied the church a zoning permit. But the archdiocese decided to fight, claiming the city’s decision under a local preservation law was unfair and in violation of a 1993 federal law called the Religious Freedom Restoration Act.

FATHER TONY CUMMINS, St. Peter the Apostle Church: We feel they are applying the ordinance to the church unlawfully. I mean, their ordinance, itself, is fine, but when they apply it to the church, it’s unlawful.

CHARLES KRAUSE: For its part, the town contends that the federal law cited by the archdiocese is unconstitutional.

MAYOR PATRICK HEATH, Boerne, Texas: Our position, of course, is that it is not constitutional, and that religious freedom is adequately guaranteed by the First Amendment to the Constitution.

CHARLES KRAUSE: The Religious Freedom Restoration Act that’s now at the heart of the Supreme Court case was passed by Congress and signed by the President in 1993. It was an effort to limit the government’s powers to infringe on religious freedom.

PRESIDENT CLINTON: The one thing that’s happened since I’ve been President, the one thing that’s happened that has–that got all the Christians together, the evangelicals and non-evangelicals, that got all the–every other religious group in America, all the strong support from the Jewish community, from the Muslims, and from others, was our attempts to pass the Religious Freedom Restoration Act which basically changed a Supreme Court decision and says, again, that if a government of this country is going to restrict anybody’s religious practice, it has to have an extraordinarily good reason for doing so; otherwise, the presumption is leave the religion alone.

CHARLES KRAUSE: It was an Oregon case that was the genesis for the 1993 law. Two state drug counselors were fired from their jobs for eating peyote. They were members of the native American church, and they argued that peyote, even though illegal, was central to their religion. But in 1990 the Supreme Court ruled that the state did, indeed, have a right to fire them. That ruling was extremely controversial because religious leaders from many faiths said it narrowed constitutional guarantees that protect freedom of religion. Since then, the 1993 law that resulted from the peyote dispute has been invoked in nearly 300 cases, more than half of them by prison inmates demanding such things as special clothing, food, and even feathers from bald eagles for religious purposes. One convict argued for conjugal visits, saying the Bible ordered him to multiply. At Lorton Federal Penitentiary outside Washington, D.C., prisoners asked for visitors by missionaries who later turned out to be drug smugglers. Despite some abuses, many cases that have arisen from the religious freedom law are far more substantial. In Chico, California, a landlady contends her religion prevents her from renting an apartment to an unmarried couple, despite California law prohibiting such discrimination.

EVELYN SMITH, Landlady: I’m a Christian, and even though it said that you can’t discriminate for marital status, is that more important than my value of my Christian faith? It just seems to me that in the constitution of both California and the United States that I have some rights too, and they’ve been violated.

CHARLES KRAUSE: Ken Phillips, who tried to rent Mrs. Smith’s apartment, disagrees.

KEN PHILLIPS, Renter: Obviously she doesn’t want to rent because she feels that renting to an unmarried couple is a sin, but there’s a lot of things that can be considered sinful. It depends upon what religion you are, or what interpretation you have in your religion. Some people consider drinking to be sinful; some people consider divorce to be sinful, for example; some people consider the consumption of pork or beef to be sinful. So when you start thinking about that, if Mrs. Smith were to be able to get this right to discriminate based upon a religion, where does it stop?

CHARLES KRAUSE: In another case the city of Washington, D.C., tried to prevent a Presbyterian church from running a soup kitchen in a downtown residential neighborhood after neighbors objected to the soup kitchen which serves the homeless. A federal judge cited the 1993 religious freedom law when he ruled against the city, saying the soup kitchen was a theological issue the city has no business deciding. Whether the law is constitutional is what the Supreme Court will now decide. Meanwhile, in Boerne, Texas, the old St. Peter the Apostle Church still stands but Masses for the congregation, which now numbers close to 5,000, are being held in a nearby gymnasium.

MARGARET WARNER: Now we’re back to Stuart Taylor. Stuart, this started, this case, when the archbishop of San Antonio sued the town, and it’s gone through a number of permutations since then. Just give us briefly the path it took to get to the Supreme Court.

STUART TAYLOR: The archbishop in his lawsuit said that the Religious Freedom Restoration Act passed by Congress means that we ought to be able to tear down our church and build a new and bigger one if we want to, and the heck with the historic preservation district. That was the basis of this suit. The district court did not reach the question whether that was a correct interpretation of the act of Congress. He found the act of Congress unconstitutional as an invasion of the Supreme Court’s authority to say what the free exercise clause of the First Amendment means. That was appealed by the other side, and the court of appeals reversed that decision, finding the law was constitutional. And the city has now appealed that to the Supreme Court, and the issue in the Supreme Court is, is this law constitutional or not?

MARGARET WARNER: And each side has picked up coalitions along the way.

STUART TAYLOR: That’s correct. There’s a huge coalition supporting the constitutionality of the law, as there was when Congress passed it almost unanimously in 1993. Just about every religious group in the country is supporting it–Senators and Representatives from the far left to the far right of the political spectrum. Civil rights groups are concerned that some laws that they like could be in jeopardy if this one is struck down. On the other side there’s a smaller coalition of historic preservation groups in the state of Ohio and twelve other states that filed a friend of the court brief saying we want to protect religious exercise, but the federal government shouldn’t be telling us how to do it.

MARGARET WARNER: All right. And then since the Religious Freedom Restoration Act’s constitutionality is at the heart of this, what exactly really does that law say? What was it designed to do?

STUART TAYLOR: It was designed to–

MARGARET WARNER: In legal terms.

STUART TAYLOR: It was designed to give religions, especially minority religions, more protection than they’re getting under the Supreme Court’s current interpretation of the First Amendment under this peyote case we saw earlier. The Supreme Court said the First Amendment doesn’t give any special protection to religious groups from generally applicable laws that everybody else has to obey. There isn’t a First Amendment right to an exemption.

MARGARET WARNER: You’re talking about laws, tax laws, zoning laws.

STUART TAYLOR: Vagrancy laws, health laws, and there are often religious groups that will have one objection or another. Some say, I don’t want a Social Security number. Some will say I don’t want my children subjected to medical treatment just because they’re dying–and prisoners and so forth. Congress wanted to give more protection to religious exercise than the Supreme Court was given. And the method they chose was to create an additional statutory level of protection, and it’s a very sweeping law that basically says any law that substantially burdens religious exercise must be relaxed, given exemption, unless it is necessary to further compelling interest and unless it is the least restricted means to further compelling interest. That is basically the legal test that Congress wishes the Supreme Court had applied. Since the Supreme Court wouldn’t give that kind of protection, Congress said, okay, we’ll do it.

MARGARET WARNER: Okay. Let’s go to today now. What did the attorney say first for the town argue?

STUART TAYLOR: The city and the state of Ohio arguing as a friend of the court basically attacked the law on at least three separate grounds, at least the city did. First, they said this is a hostile takeover of the free exercise clause of the First Amendment, that basically Congress has usurped the role of the Supreme Court as the final arbiter of what the Constitution means, including the First Amendment. Second, they said it’s a massive usurpation of state’s rights in violation of the 10th Amendment because every state and local law in the country is now subject to some religious group saying, hey, I shouldn’t have to comply with that law–land use, whatever–I shouldn’t have to comply with that law because I’m a religious group. And third, they said, or at least the city said, it’s an establishment of religion. And Justice Kennedy seemed sympathetic to that line of argument that this creates a preference for religions under every law in the country and that violates the neighboring clause in the First Amendment that says no law respecting an establishment of religion shall be ordained by Congress.

MARGARET WARNER: And then what was the gist of the arguments of the attorneys for the other side?

STUART TAYLOR: Douglas Laycock, representing the Church, claimed that Congress’s power to pass this law was established by an unbroken tradition going back to the 14th Amendment itself and, again, in particular Section 5 of the 14th Amendment, which says, "Congress shall have power to enforce the provisions of this article." He interprets that as meaning that any time Congress thinks the Supreme Court is not protecting a right–a right guaranteed by the 14th Amendment aggressively enough, that Congress can step in and give it more protection. Now, the 1st Amendment, of course, is not the 14th Amendment, but Congress–the court has held that all of the provisions of the Bill of Rights are most of them, including free exercise of religion, are incorporated by the 14th Amendment in the sense that now they can be enforced against the states through the 14th Amendment.

MARGARET WARNER: And that’s the way, for instance, Congress has justified passing say the Voting Rights Act, which forces states to recognize individual rights.

STUART TAYLOR: The Voting Rights Act in particular, and any number of other civil rights laws, have been passed on the ground that, okay, we don’t think the Supreme Court in the guise of interpreting the Constitution is doing enough to stop various forms of discrimination against minorities, so we’re going to do more. So, for example, the Voting Rights Act bars any practice that has the effect of diluting minority votes, whereas, the Supreme Court had said it only bars laws having a purpose of doing that.

MARGARET WARNER: All right. So what could you tell from–what did the Justices–how did they respond today?

STUART TAYLOR: Several of the Justices seemed very uncomfortable with the law and not to like the law, but it was impossible to predict whether five of them would agree to strike it down as unconstitutional. There are many profound issues here, and certainly the biggest of them is the concern that Justice Scalia and others seemed to pick up from–from the city that if Congress can do this, maybe Congress can, in effect, overrule the Supreme Court on all kinds of constitutional issues because you can always say, well, we don’t think they’re protecting this right enough, and, therefore, we’re going to protect it a little bit more. And the 14th Amendment covers almost the entire waterfront of constitutional rights. Justice O’Connor raised various concerns, in particular frivolous prisoner suits. She mentioned a case in which a SEEK student in a high school was allowed to take a ceremonial knife into school in spite of a general rule against weapons. And she’s concerned about frivolous and dangerous suits. Justice Kennedy was concerned that this might be an establishment of religion. I think they’re going to have a very hard time figuring out what to do and agreeing on any particular rationale for it. So even if they strike it down, it’s possible that they’ll have several opinions as to what was wrong with it.

MARGARET WARNER: And in any event, a ruling here doesn’t necessarily decide this case involving St. Peter’s Church?

STUART TAYLOR: It does not. If the Supreme Court upholds the Religious Freedom Restoration Act, the case goes back to the district court, and then they decide whether, in fact, what the city of Boerne was doing by restricting the church violates the Religious Freedom Restoration Act. And it’s not at all clear that it does.

MARGARET WARNER: So–but if they–if they strike down the law, then–

STUART TAYLOR: If they strike down the law, that’s the end of this case. And one little wrinkle is that it’s not at all clear that there are five members of the Supreme Court who still like the original decision. They want the Congress overruled.

MARGARET WARNER: Well, thanks, Stuart. Thanks very much.

STUART TAYLOR: Thank you.

The post NewsHour: Supreme Court – February 19, 1997 appeared first on Stuart Taylor, Jr..

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?

MR. TAYLOR: That issue was kicked around a lot in today’s arguments, and some of those who are–who want to protect the protesters more broadly were stressing that, hey, this injunction is much more restrictive than we would allow in say a labor picketing case or in a civil rights administration, there are some precedents that support that argument. Coming back the other way, Justice Breyer in particular said a woman who’s pregnant who’s about to undergo a difficult medical procedure is someone who may deserve a little more protection in terms of anxiety-producing harassment than a strike breaker walking through a picket line. That was his essential point. It was very much disputed by some of the other justices, in particular, Kennedy and Scalia, and perhaps Justice O’Connor too. I think the court is not likely to say and is very unlikely to say well, we’re going to have one set of rules for abortion clinic protests and another set of rules for all other forms of protest. But I think the, you know, uniquely sensitive nature of the abortion issue is certainly playing through their thinking in this case.

ELIZABETH FARNSWORTH: But do the precedents indicate that there probably will be some movement on the court’s part to limit some of the stricter aspects of the injunction?

MR. TAYLOR: It–walking out of the argument, I wouldn’t have bet money how it was going to come down, but it looked a little bit like they were going to trim this floating buffer zone. The 1994 precedent in a case called the Madison Case upheld a 36-foot fixed buffer zone around the clinic. Here the fixed buffer zone is 15 feet, so presumably, it would be surprising if they strike that down. At the same time, that 1994 precedent struck down a 300-foot so-called ‘no approach’ zone, but I thought the best harbinger of how this one may come out is Justice Souter, who was seemingly a little bit on both sides of the case, said, well, in essence, he said, it makes a lot of sense to have some kind of a fixed buffer zone so people can’t get close enough to shove, push, and harass, if that’s what they’re disposed to do. On the other hand, he said, when you have these multiple floating buffer zones, with everybody anywhere near the clinic having this invisible 15-foot circle around them, it’s awfully hard for the protesters to know where they can go and where they can’t go, and it’s awfully hard for the police or the courts to know when it was violated and when it wasn’t violated. So he said, maybe we ought to have fixed buffer zones, not floating buffer zones, and I wouldn’t be surprised if that logic comes out in the decision.

ELIZABETH FARNSWORTH: The court also took up a state tribal conflict today, the Idaho Vs. The Couer De Lane Tribe of Idaho. What’s at stake here?

MR. TAYLOR: In the narrowest sense, it’s a dispute over rights of ownership and use to the Lake Couer De Lane and to the lake bed. The tribe claims under a grant by President Ulysses S. Grant that it’s theirs. The state claims that under something called the Equal Footing Doctrine when they entered the union, it’s theirs. But the really big stakes in this case don’t have much to do with this lake. The really big issue is whether the court will use this case to, uh, to build–put another brick on the states’ rights edifice it’s been building the last few years, in particular the issue, the main issue for the court is whether federal courts are barred entirely from hearing the tribe’s lawsuit against the state by the 11th Amendment, which generally speaking, bars certain kinds of lawsuits against states in federal court. But there are exceptions, multiple exceptions to that doctrine, and the issue in the case is whether the court is going to shut off one of the exceptions and say sorry. At least if it’s a dispute over rights to real property, uh, the states have carte blanche without being second-guessed by federal courts.

ELIZABETH FARNSWORTH: And finally, turning to something the court did yesterday, it agreed to review a 1993 law aimed at proving government interference with religion. Tell us about the significance of that.

MR. TAYLOR: As someone who quoted in the newspapers said very well today, It’s two huge cases rolled into one. The court’s disposition of this case will have a very big impact on religious liberty in America and on how far it goes when it collides with state regulation. And it will also perhaps have a big impact on the question of Congress’s power to second-guess the Supreme Court and impose new regulations on the Supreme Court in the name of the–I’m sorry–on states in the name of the Constitution that the Supreme Court itself has refused to impose.

ELIZABETH FARNSWORTH: Briefly, what are the facts? I know it’s hard to tell these facts briefly, but try.

MR. TAYLOR: In this small town in Texas, a Catholic Church was overcrowded; they were turning away people from the Mass because they didn’t have enough room. They wanted to expand. They happened to be in a historic district. The town said no building permit, sorry you can’t expand, and, um, we’re treating you just like everybody else, was the town’s attitude; we wouldn’t let any–we wouldn’t let a hardware expand either. So the Church said, yeah, but we’re not a hardware store; we’re a church, and under this 1993 law, the Religious Freedom and Restoration Act, the Church said, if you do something to us that makes it harder for us to worship, um, you’re violating our federal rights. And so they sued under that logic and are claiming that the Religious Freedom and Restoration Act entitles them to the building permit. Uh, the city is responding by saying the law’s unconstitutional. Um, the Supreme Court in 1990 in a court decision that lent to this new law had said generally speaking religious groups and churches are no more immune from state regulation than anybody else is, if it’s a broad neutral regulation. Um, in doing so, the court was cutting back on the previous decisions protecting religious liberty, and Congress didn’t like it. Congress passed a law in 1993, it was basically trying to say sorry, we disagree, we think religious liberty deserves more protection.

ELIZABETH FARNSWORTH: Well, thank you, Stuart. We’ll be having you back to talk about this and the other cases too.

MR. TAYLOR: Thank you.

The post NewsHour: Supreme Court – Abortion – October 16, 1996 appeared first on Stuart Taylor, Jr..

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.

But it was a good idea then, and it’s a good idea now, at least in the view of some smart, compassionate experts on poverty and welfare, who dare not say so publicly lest they be attacked by the thought police. It would be good for poor women-whose chances of escaping poverty, are often doomed by teenage motherhood-and good for the rest of us.

The crux of the poverty crisis that blights our society is the fact that millions of babies are being born to poor teen-agers so lacking in elementary skills, work habits, and self-discipline that they are unlikely to be either responsible parents or self-supporting providers. Many of these babies grow up in squalor and themselves become dependent denizens of the welfare culture; many became criminals. And so on, generation after generation

It’s getting worse. The percentage of children born out of wedlock registered its largest recorded one-year increase ever in 1994, from 31.0 percent the previous year to a staggering 32.6 percent, according to data released in June by the National Center for Health Statistics. Out-of-wedlock births rose among both whites (to more than 25 percent) and blacks (to more than 70 percent). Not all these children will be poor, of course. But many will.

The only realistic hope for braking the bleak cycle of teen pregnancy and welfare dependency is to find ways t persuade poor teen-agers not to have babies-at least, not until they are old enough, and capable enough, and self-supporting enough to provide a decent home life. But nobody- nobody-has any great ideas for realizing this hope, short of reverting to the cruelest, let-’em-starve brand of social Darwinism.

Liberals have long been bereft of ideas for confronting the problem. Understandably reluctant to make poor women and children even poorer, they have been in a state of denial of the massive evidence that-as President Franklin Roosevelt warned in 1935-"continued dependence upon relief induces a spiritual and moral disintegration."

While liberals have promoted worthy efforts to make contraception and education about family planning widely available, such efforts have not made much of a dent in the problem. Many poor teen-agers want babies-or at least aren’t strongly motivated lo avoid pregnancy-and many of those who don’t want babies aren’t diligent about using contraceptives, like the pill, even when freely available.

And now, after fighting to preserve welfare as we know it, liberals have suffered a far greater loss-the demise of the 60-year-old federal entitlement to welfare-than they might have suffered had they supported "workfare" and other, more modest reforms, including Norplant incentives.

Thoughtful progressives like Sen. Daniel Patrick Moynihan (D-N.Y), who long ago recognized the bankruptcy of the liberal approach, have properly stressed the need to push welfare mothers into jobs and job-training programs. This makes sense because some of them will rise to the occasion, learn the work ethic, and become at least partly self-supporting. And others may be dissuaded from having children by the prospect of being required to do what other citizens do-spend their days working outside the home in order to earn their checks.

But the hard truth is that (as Moynihan acknowledges) a very large percentage of welfare mothers and would-be welfare mothers are so crippled by their own early childhood environments as to be essentially unemployable, no matter how well-financed and well-ran may be the jobs programs, and the related counseling, training, and childcare programs, and the schools.

And under the harsh new Republican-sponsored legislation signed this month by President Clinton, the jobs programs will not be well-financed It appears that millions of welfare mothers and children will simply be cut off-unable to get or hold jobs, and left to beg from relatives and strangers, to steal what they can even to sleep on the streets and on grates, depending on how-much Calcutta-style misery…

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