Decisions, Decisions
In the Boston Globe, Cass Sunstein threatens us:
The right to reproductive freedom has played an occasional role in many presidential campaigns, but its fate is likely to turn on the 2008 election.
I swear I've heard this argument for the last several elections, but who knows, perhaps it's finally true.
Sunstein admits Roe v. Wade was poorly reasoned, but claims the concept of stare decisis means it should stand.
...it is one thing to object to Roe as written in 1973. It is another to suggest that it should be overruled in 2008.
Is this argument good enough? Is it any good? Sure, stare decisis counts for something, but why should the Supreme Court uphold any case that is, in its essence, deeply defective? Brown came 58 years after Plessy--was the length of time a serious consideration? (And Plessy only allowed segregation, it didn't demand it--the people could have voted it away.) Why should the longer we wait for a case to be overturned (often due to political reasons) make that much a difference?
...Roe v. Wade is now best seen, not only as a case about privacy, but also as involving sex equality.
Sunstein has long claimed Roe's result should have been based on a sexual equality rationale (an argument I consider far worse than the privacy argument)--but hey, stare decisis, it's already been decided, why do you think you can change it 35 years down the road?
...after more than three decades, a decision to overrule Roe v. Wade, and to throw an established domain of human liberty into turmoil, would be anything but conservative.
A bit of a bait and switch--there's conservative actions and there's conservative politics, and they're not exactly the same. Perhaps judicial minimalism, which Sunstein favors, is a good idea, but it does have the effect of freezing a lot of opinions of the past 50 years that went in favor of the left--decisions that leave no option for conservatives to get their policies across. Why would they favor that?
It is relevant here that many people, including McCain running mate Sarah Palin, believe that abortion is unacceptable even in cases of rape and incest, and there is little doubt that if Roe is overruled, some states will enact that belief into law.
No, it's not relevant. We've left the realm of stare decisis and constitutional argument and are now into scare tactics. The question is should there be a right to abortion, or should the public get to decide democratically. (And why even mention Sarah Palin? I don't think she'll be appointing the justices and I'm sure she won't be appointing the public.)
...they want judges to impose flat bans on affirmative action, to invalidate environmental regulations, to increase presidential power, and to reduce the separation of church and state. [...] Does all this sound like "strict construction"?
You betcha. Strict construction (which I don't support, but no matter) would not only be consistent with overturning faulty old cases, it would practically demand it.
Actually there is an uncomfortably close overlap between the constitutional views of some recent Republican appointees to the federal judiciary and the political views of those on the extreme right-wing of the Republican Party.
If by "extreme right-wing of the Republican Party" you mean what's popular with a majority of the country (at least on a lot of these issues).
posted by LAGuy @ 12:20 AM
6 Comments:
Sure, stare decisis counts for something, but why should the Supreme Court uphold any case that is, in its essence, deeply defective?
The value of stare decisis to me depends on whether a decision is defective only in its reasoning, or also in its result. If you believe that Roe reached largely the right answer for largely the wrong reasons, there's little to be gained by hearing another case to get to much the same answer through better reasoning, so stare decisis should count for something. If you believe it reached wholly the wrong answer through wholly the wrong reasoning, stare decisis shouldn't be given any weight (e.g. Plessy and Brown). That's why he's making the argument about sexual equality -- if you buy that argument, you should feel comfortable leaving Roe alone based on stare decisis.
why even mention Sarah Palin?
Because some folks -- including his wife -- were under the delusion that John McCain is moderate on this issue, and his choice of running mate was a strong signal that he's going to be an absolutist.
If by "extreme right-wing of the Republican Party" you mean what's popular with a majority of the country (at least on a lot of these issues).
I'd be interested to hear what you think some of those issues are.
I find two things deeply ironic about this. First, the people who cry "right to privacy" the loudest are the first to shred your privacy if it suits their interests - or has anyone forgotten what the Democrats, and Joe Biden in particular, did to Robert Bork and Clarence Thomas?
Second, the same people who applaud Roe v. Wade also claim that the decision in 2000 to end the recount in Florida was a sham.
You know, if you leave the most important decisions of your life up to 9 individuals of various backgrounds and temperaments, you're going to get a few decisions you don't like.
I think the privacy/public interest analysis changes when you are nominated for high office. But I wouldn't be so sure the Biden/Bork/Thomas drama really went exactly how you were told.
I think both Roe and Bush v. Gore were the right decisions for the wrong reasons, for whatever that's worth. And I wholly agree with your last point, but am not sure there's a better alternative. Leaving individual rights up to the tyranny of the majority? No thanks.
"The value of stare decisis to me depends on whether a decision is defective only in its reasoning, or also in its result."
This sounds like you want Supreme Court Justices to take raw political consequences into account.
As far as the result, by the way, the case has caused more controversy and protest than most, which should at least make people question if the result is so desirable.
The essence of my argument, once again, is settled law is worth a lot, but settled bad law is worth less, and settled controversial absurdly bad law is even worse.
"Because some folks -- including his wife -- were under the delusion that John McCain is moderate on this issue, and his choice of running mate was a strong signal that he's going to be an absolutist."
Read the Palin paragraph again. It's about the extremists abortion laws we'll have if (paradoxically) we allow the people to decide. My guess is he'd written this column or at least this argument before Palin was even named McCain's running mate, then threw her into the mix to give a face to the argument.
"I'd be interested to hear what you think some of those issues are."
I'll pick just two from the list Sunstein offers: affirmative action and separation of church and state. The "extremist" views Sunstein fears on this issues are quite popular around the nation.
In his collection of Essays called "The Vote", Prof. Sunstein wrote in the introduction that he was thoroughly surprised to learn that intellectual, legal authorities that he greatly respected could completely disagree about the efficacy of the decisions in Bush v. Gore. It led him to ponder the nature of "right" with respect to legal doctrines. Sunstein's defense of stare decisis seems to be a further development of this thought process. It goes like this - since we cannot know for sure that something is "rightly decided", we must give increasing deference to the length of time that something is deemed "rightly decided."
Personally, I agree with the notion that the Constitution, for all practical purposes, means precisely whatthe S.Ct. says it means at any given time. Because the judiciary is not a democratic segment of our government, I think it is critical that the President and Congress do get to influence the decisions of the courts, precisely because there is not necessarily one correct decision in most if not all litigated Con Law cases.
Cass Sunstein is wrong about what to fear. If Roe v. Wade were overturned, we would finally get a long run of Democratic rule, in order to arrive at a reasonable legislative solution to this thorny issue. The (smart) Republicans know this, which is one reason why they haven't tried that hard.
Still an Obama supporter
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