Tuesday, September 13, 2005

Article: Abortion and the Supreme Court

Judge Roberts is being questioned for one of the most powerful jobs in the world today:

Answering questions from Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, Roberts also said he believes the U.S. Constitution protects a right to privacy and repudiated a view expressed more than two decades ago in a memo in which he referred to a "so-called" right to privacy in the charter.


Much of the initial questioning by Specter, who supports abortion rights, involved the principle of stare decisis, or respect for precedent, especially as applied to Roe v. Wade , the 1973 Supreme Court decision that legalized abortion.

Roberts refused to say whether he sees any erosion of precedent regarding that decision, explaining that he did not want to get into the application of legal principles to a particular case that might come before the court. But he noted that "the central holding" in Roe v. Wade was reaffirmed by a 1992 Supreme Court decision, Planned Parenthood v. Casey , which "is itself a precedent that would be entitled to respect under stare decisis ."

So if he's telling the truth, this is a huge victory for people who are pro-choice and a huge defeat for people who are pro-life.

But I don't want to argue about that (right now). What I find more interesting at this moment is the bizzaro political philosophy of our current elected politicians...

I've blogged about this before as it pertains to intelligent design, but now I've noticed that its become part of a pattern, which I first read about in "What's the Matter with Kansas?"

Being conservative, by definition, used to mean supporting the status quo. The reasoning is simple. What we have (or once had) is good, I like what we have, therefore I shall resist any change to the current arrangement of things that undercuts what we have. This makes a lot of sense for rich people, or for anyone who buys into society's current value system and does not want to see it change.

But its a sharp pointy stick in the eye to anyone who is poor, or anyone who rejects or is oppressed by the society's current value system, especially racial/sexual minorities. Thus they tend to be liberal.

The Latin stare decisis, literally translated, means "stand by things decided." Judge Roberts, by supporting stare decisis, is taking a very conservative stance. He's been very clear - he sees himself as an umpire, not a player.

Now, this also ignores the idea that the Constitution is a living document. For example, using the same philosophical reasoning - stare decisis - Judge Roberts would have voted to uphold Dred Scott v. Sandford and Plessy v. Ferguson. He certainly would not have ruled in favor of Griswald v. Connecticut, the case which barred government interference in contraception between married couples and created the precedent of a "right to privacy" - which was later used as precedent to prevent government interference in interracial marriage in Loving v. Virginia and then to prevent government interference in choosing abortion in Roe v. Wade.

But now that all of this is a matter of settled law, Judge Roberts says that he'll uphold it because of stare decisis. Clearly, Judge Roberts is philosophically a very conservative judge.

Now here's the interesting part. Elected conservatives want to radically change the status quo, as do the conservative religious activists who elected them. They want to reverse decades of settled law, and ignore stare decisis, to make abortion illegal. Now, thirty years ago, when Roe was new and civil rights were exploding, opposition to abortion was a conservative position to hold.

But overthrowing the existing status quo, entrenched in our laws and culture for decades now, is a profoundly liberal position, philosophically speaking. This would be nothing new for religious activists. Remember slavery? Prohibition? Women's suffrage? Civil Rights? Religious activists were at the forefront of liberalism for centuries in the United States.

The current generation of religious activists haven't figured this out.

Its clear that they've painted themselves into a corner. Economic liberals are now firmly supportive of socially liberal causes. This despite the fact that the poor are the most religious group Americans. While many working class whites have become permanent "Reagan Democrats" (translation: voting Republican) the historical allies of social change in this country - unions, blacks, urban liberals, immigrant groups, good government reformers - are entrenched in the pro-choice camp.

Instead, religious "conservatives" are on the loosing side of a Faustian bargain with fiscal conservatives. Fiscal conservatives love stare decisis because it protects the last thirty years of pro-business laws, and they really don't care about, or at best intellectualize away, social issues.

And when given the choice between nominating a cerebral religious judge like Scalia, or a radical "originalist" judge like Thomas, Bush has once again sided with business conservatives by picking Judge Roberts. The net effect - religious conservatives/reformers are screwed - and economically liberal groups have lost what used to be their most effective ally.

I'm waiting to see who Bush nominates to replace O'Conner to see if my theory is correct.

Bush's most likely nominee to replace O'Conner.

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