Don’t Think of a Foetus
Word this morning that Supreme Court Justice Sandra Day O’Connor is retiring – possibly the most momentous event for the Supreme Court since Chief Justice Warren stepped down in 1969. O’Connor has been the swing vote on the Court on many issues since the early 90s, less because of a moderate judicial temperament (though she seems to have that) than out of a penchant for hair-splitting. That George W. Bush gets to appoint her successor is a cause for considerable alarm. This sword has been hanging over the nation’s head since 2001, and now the thread has snapped.
Focus on her replacement will predictably center on a single issue: abortion. Both sides of the debate have concentrated their attention on the judiciary since the Court found a Constitutional right to privacy in the 1973 Roe v. Wade decision. Opponents have sought to have the ruling overturned for decades, and yet, despite four Republican appointments to the Court since Roe was decided (vs. two for Democrats), the pro-Roe majority has held – albeit sometimes tenuously. Both sides see the O’Connor retirement as the best chance in a generation to revisit the issue of the State’s power to regulate the reproductive decisions of women. Since this is such a central rallying point for Bush’s far right base, it’s assumed that Bush will send up a nominee guaranteed not to disappoint, as Stevens, Kennedy, Souter and O’Connor did.
I’m not so sure, for several reasons.
First, for the Right, overturning Roe falls into the “be careful what you wish for” category. For more than 30 years, the existence of a Constitutional protection for women’s choice has been a rallying cry and a fundraising bonanza for the conservative movement. The people who get most worked up about the issue are white working-class folks from the Bible Belt and the heartland: foot soldiers, not generals. These people have been played for chumps by the Republican elite since the Reagan days. R’s talk a good game on “moral value” issues around election time, but when the time comes to deliver, there’s never quite the votes for the kind of apocalyptic social regimentation that these folks crave.
There’s good reason for that. Look at the Terri Schiavo poll numbers. Even people who claim to like the idea of “protecting life” shrink from the actual measures that would be necessary to enforce a single ideological standard of morality on a diverse population. Overturning Roe would be Schiavo to the fiftieth power, because the Court ruling couldn’t make abortion illegal: it would just return the decision to the states. The resulting patchwork of different laws, different standards, perpetual wrangling at the state level, and accumulation of ugly stories about women forced to carry unwanted children to term because they had the bad luck to live on the wrong side of the Washington-Idaho border will not make this country a better place to live in.
Also, from a legal perspective, the privacy right that underlies the right to choose comes not from Roe, but from an earlier decision, Griswold v. Connecticut. This decision dealt not with abortion, which is inflammatory and controversial, but with the right of couples to use birth control in the privacy of their homes (and of pharmacists to dispense it without state control). The current members of the Court who favor overturning Roe understand this and are consistent in their views. Any ruling by the Court stating that Roe was wrongly-decided that didn’t also fatally compromise the privacy protections of Griswold would be a mockery of legal reasoning, likely intolerable to someone like Justice Scalia. And what percentage of the American public – even those uncomfortable with abortion – would support the re-discovery of a government right to restrict access to birth control for consenting adults?
By appointing a Court guaranteed to overturn Roe, Republicans would appeal to a small slice of fanatical votes but cut themselves off in a definitive way from many, many others, ensuring themselves minority status for years. And the evidence indicates, if it’s ever a choice between keeping power and, well, anything else, R’s will choose the power 10 times out of 10. If Bush himself happens to be insanely committed to this path and is impervious to reason (and it wouldn’t be the first time), I suppose it’s possible that he’d try to ram it through anyway, especially since he himself isn’t facing re-election. But I suspect that other powerful Republicans will prevail on him to adopt a slightly different strategy.
That’s because what’s really at stake here isn’t red-meat social issues for the rubes in the heartland: it’s big bucks for big business. What conservatives (those who count, anyway) really hope to gain from a Supreme Court appointment is progress on two other issues: property rights and regulation. The whole apparatus of modern “big government” in the United States is based on an interpretation of the Interstate Commerce clause of the Constitution promulgated in a series of Supreme Court decisions in the late 1930s, after Roosevelt threatened to pack the Court if it didn’t stop ruling his New Deal programs unconstitutional. This, more than anything else, has been the burr under Republicans’ saddles for the past 65 years.
With a pliant majority on the Supreme Court, the radical conservatives could accomplish through judicial fiat what they could never achieve legislatively: the complete dismantling of the regulatory state. The FCC, the FDA, OSHA, laws protecting unions, workers and consumers, election laws – anything that permits the Federal government to set standards or provide benefits – could be found unconstitutional according to pre-1937 (or pre-1909) jurisprudence. This is what the whole Constitution in Exile movement is all about, and it promises a far more sweeping transformation of American government and society than anything the right-to-lifers could dream up. Talk about your nuclear options…
Because these issues pivot on legal doctrines and abstractions (even if their consequences would be terrifyingly concrete), neither the public nor the media has so far shown much interest in having a full-throated debate. It’s much easier to focus on the emotional issues of abortion, religion and flag-burning. The agenda is so audacious and the constituency so narrow and focused that it might seem farfetched to imagine anyone could accomplish it simply by appealing to five out of nine members of a Court. But that’s the game plan.
Toward this end, the abortion issue will provide a useful smokescreen. Both advocates and opponents will generate a cacophony of sound-and-fury. The famously intractable Bush may even be “persuaded” to withdraw his first candidate, deemed unacceptable for being too hard-line on abortion, and replace him or her with a “moderate” on social issues, who just happens to be a total extremist on property and regulation. Bush would get credit for compromising, Democrats would be hard-pressed to reject two nominees in a row and would in any case appear to have been victorious in the eyes of their own single-issue activist base, the anti-choice rabble would persist in their oh-so-valuable rage and resentment, and the far Right would get one giant step closer toward rolling America back to the days of the Robber Barons.
8:32:46 AM 
|
|
