Posted on 09/18/2005 4:25:17 PM PDT by Mark
Ever since President George W. Bush nominated John Roberts to the U.S. Supreme Court, legal analysts have said that the 50-year-old jurist is an exceptional lawyer, and clearly he is. Only the most skilled of attorneys could so deftly say so little in such a great expanse of time.
But don't fault Roberts for the evasions in his confirmation hearings. He's merely playing by the established rules of America's dysfunctional, overly politicized judicial confirmation process.
It's a process for which Roe v. Wade bears much of the blame.
On the question of that 1973 Supreme Court ruling, which came up repeatedly throughout last week's hearings, Roberts remained valiantly vague. What is the judge's take on stare decisis, the principle that the court is bound by precedent, and how does it apply to Roe?
Roe is "settled as a precedent of the court," Roberts said. What's more, "it is a jolt to the legal system when you overrule a precedent," and "a jolt to the legal system ... is inconsistent with principles of stability."
So a Roberts court would uphold Roe?
Not necessarily. Roberts went on to note that sometimes a societal jolt is "a price that has to be paid" to correct egregious past wrongs.
Thus Roberts, like every senator on the Judiciary Committee, celebrates the court's decision in the 1954 case of Brown v. Board of Education, which dumped nearly a century of "settled law" and precedent by overturning the racist Dred Scott ruling.
Precedents are binding, but they're not absolute. And there's no telling what Roberts thinks about Roe.
In the 1992 case of Casey v. Planned Parenthood, the court relied on "settled expectations" - i.e., Americans have come to expect easy access to abortion - as a reason for upholding Roe. But as Roberts noted, settled expectations aren't the only standard for reconsidering contested precedents.
Other criteria, Roberts observed, include "extensive disagreement," whether a precedent has been eroded by subsequent developments, whether a precedent is workable, and whether an old ruling compromises "the legitimacy of the court."
Of course Roberts wouldn't say so, but by any of these standards, Roe appears to be on shaky ground.
Extensive disagreement? Just look at the angry faces in last week's Senate hearing room.
Subsequent developments? Embryology has come a long way since the court concocted its trimester-based theory on human life in 1973.
As for workability, by removing the question of abortion from the arena of politics, and shifting it to the courts, Roe has hardened political divisions. This summer, we saw those divisions nearly derail government in the Senate standoff over judicial nominations.
Finally there's the question of the court's legitimacy, which Roe has only undermined.
Abortion is a topic about which the Constitution is silent, and in which the court never needed to enmesh itself. Nonetheless, in 1973, the court intervened, thereby compromising the judiciary's reputation and stability. In no small part because of Roe, the Supreme Court is increasingly seen not as a dispassionate arbiter of the law, but as one more political body dispensing political decisions.
The proof is in Roberts' hearings.
Because of Roe and similarly politicized rulings, we now choose justices for largely political reasons, but the old, holdover rules of judicial ethics preclude nominees from talking politics. So confirmation hearings become pointless spectacles, generating much heat but little light.
"We are rolling the dice with you, judge," a disgusted Sen. Joe Biden, D-Del., told Roberts last week. "It's kind of interesting, this kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them."
Only when the Supreme Court removes itself from the business of setting social policy, and limits its role to its constitutional functions, will the kabuki dance stop.
Post-Roe, all 50 states would take up the abortion issue separately, setting their own policies depending on local sensibilities. A long-thwarted debate could proceed rationally. And no one would care about Roberts' personal opinions on the matter, because they would truly be irrelevant. The court could begin to restore its integrity.
If Chief Justice Roberts ever needs a good reason to revisit Roe, he need only remember the farcical events of the past week.
Chris Weinkopf is the Daily News' editorial page editor. Write to him by e-mail at chris.weinkopf@dailynews.com.
Too rational.(/sarcasm)
This is a very good analysis, imo.
What an uninformed article. Brown v. Board of Education overruled the case of Plessy v. Ferguson and its "seperate but equal" doctrine. Dred Scott was essentially overruled by the result of the civil war and the constitutional amendment which outlawed slavery. Is this a real newspaper?
Will Roberts make a finding that the "privacy" aspect of Roe was made from whole clothe based on Mayo Clinic's privacy policy, and NOT from ANYTHING found in the beloved Constitution?
Correctumundo.
"Thus Roberts, like every senator on the Judiciary Committee, celebrates the court's decision in the 1954 case of Brown v. Board of Education, which dumped nearly a century of "settled law" and precedent by overturning the racist Dred Scott ruling.
What a dummy....Dred Scott said that blacks wree not and could not be citizens and therefore could not bring cases in court. It was overturned by the Civil War.
It was Plessy vs. Ferguson, in 1896, that addressed the legality of segregated schools. Everone who has been to school, segregated or not, knows that.
So thats where we are.
Even there, what basically happened FWIU is that BvBoE didn't so much overturn PvF, but rather enforced it. Essentially, the plaintiffs in PvF and subsequent cases argued that while the "separate" schools were nominally equal, the school boards were failing to make them really be equal. In PvF and subsequent cases, the school boards insisted that they could correct the problems identified by the Court. What happened in BvBoE was that the Court decided eventually to say "enough": Separate but Equal would have been fine if the "separate" was in fact "equal". But since school boards consistently failed to make it so, the only effective remedy was to force people to go to the same schools.
One of the difficulties sometimes in determining what constitutes "judicial activism" is that a court must decide not only a winner, but also a remedy. In some cases, a court must fashion a remedy out of whole cloth because the law and Constitution clearly require one but don't specify what it should be. The job of formulating a remedy actually belongs to the legislature rather than the court, but sometimes the legislature doesn't do its job.
Although the Massachusetts Supreme Court was blasted for judicial activism when it directed the legislature to legalize gay marriage, its mode of action was pretty close to the proper one (the proper response by the legislature would have been to explicitly provide that gay or straight men are allowed to marry gay or straight women, thus making the marriage laws explicitly non-discriminatory). Although I doubt that the marriage laws should have been deemed discriminatory in the first place, since the court held that they were, it was better for the court to direct the legislature to fix the problem than to simply impose its own remedy by fiat.
There is a very special room in hell for Justice Harry Blackburn.
An excellent analysis, you moonlighting under an acronym?
"The people are sick and tired of your feigned outrage, you worthless POS, Senator Biden," a disgusted F16fighter, C-Free Republic shouted at his TV last week.
Brown put the lie to Dred Scott v Sanford and Plessy v Ferguson.
But thats neither here nor there, the thesis of the article is that the SCOTUS poisons the public discourse by extra constitutional meddling in the affirs of the American public. An in that, this author is exactly right. The culture wars were started by the courts and are fueled by the courts perpetually.
Amazing isn't it?
If you review the decision, you will see that the issue was not the equality of the facilities but the separation itself. The Court held that separate is inherently unequal.
Was that decision based upon principled argument, or rather upon the fact that the state's claims that "separate" could be made "equal" did not appear true in practice?
The supremes took upon itself something that ought to have been decided by the states.
Bussing was a total failure, resulting in the destruction of neighborhood schools, and minority parents uncomfortable about going to parent child conferences at schools in distant neighborhoods.
HAve we all forgotten that before Roe v Wade and Doe v Bolton almost every state forbade abortion until the federal Judiciary overturned their constitutional rights to legislate and regulate?
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