In a 1986 case called Bowers v. Hardwick, the Supreme Court ruled that state laws against homosexual sodomy do not violate the U.S. Constitution. In a 2003 case called Lawrence v. Texas, the court ruled that on second thought, anti-gay-sodomy laws do violate the Constitution. Liberal politicians cheered this rare and unexpected admission of error by the court. They did not express any alarm about the danger of overturning precedents. Plessy v. Ferguson, upholding racial segregation, was a major precedent when the court overturned it and ended formal racial segregation with Brown v. Board of Education in 1954. Liberals did not complain.
These days, the vital importance of respecting past Supreme Court rulings is an urgent talking point for Democratic operatives, liberal talk-show hosts, and senators feeling their way toward a reason to oppose Supreme Court nominee Samuel Alito. Olympia Snowe, a Republican liberal from Maine, said Wednesday that Alito’s respect for precedents will be “the major question” in her decision whether to support him.
The major question for Snowe and other liberal senators actually is not respect for judicial precedents. The major question is abortion. They want to know whether Alito would vote to overturn Roe. But by the absurd unwritten rules of these increasingly stylized episodes, they are not allowed to ask him and he is not allowed to answer. So the nominee does a fan dance, tantalizing the audience by revealing little bits of his thinking but denying us a complete view. And senators pretend, maybe even to themselves, that they really care about precedents and privacy in the abstract.
The artifice can get quite elaborate. Sen. Arlen Specter, chairman of the Judiciary Committee, makes a half-serious distinction among precedents, super-precedents, and super-duper precedents. Others emphasize that social policies can start with a Supreme Court ruling and develop into deeply rooted national values. That happened with Roe and abortion, they would say, while the opposite happened with Bowers and laws against homosexuality. Of course if a policy has really become a deeply rooted national value, then the once-controversial Supreme Court ruling is superfluous, because democracy will protect such a value. The fear that motivates Roe panic is that the rights at stake are not deeply rooted. Or not deeply rooted enough.
While Roe defenders play this double game, ostensible Roe opponents, especially those in the White House, may be playing a triple game. Their public position is A) Roe is a terrible decision, responsible for a vast slaughter of innocents; B) legal abortion is deeply immoral; C) we ignore all this in choosing Supreme Court justices, and you (Roe defenders) should, too. It doesn’t make sense, and it’s not believable. The natural assumption is that Bush is trying to con abortion-rights supporters. Only an idiot would squander the opportunity to rid the nation of Roe because of some fatuous nonsense about picking judges without finding out the one thing you most urgently want to know.
But Machiavellians of my acquaintance believe that it is the anti-abortion folks who are getting conned. The last thing in the world that Republican strategists want is the repeal of Roe. If abortion becomes a legislative issue again, all those pro-choice women and men who have been voting Republican because abortion was safe would have to reconsider, and many would bolt. Meanwhile, the reversal of Roe would energize the left the way Roe itself energized the right. Who needs that?
Abortion is the most important issue in American politics. It shouldn’t be. Others have as big an impact on the lives of individuals and a far bigger cumulative effect on society. No other nation obsesses about abortion the way we do. But many Americans believe that legalized abortion is government-sanctioned murder or something close to it. And many others (including me) believe that forcing a woman to go through an unwanted pregnancy and childbirth is the most extreme unjustified government intrusion on personal freedom short of sanctioning murder. For many in these groups, abortion is almost by definition an issue that overwhelms all others, or comes close, when they are deciding how (and whether) to vote. It is also, on both sides, a reliable issue for opening wallets.
Yet there is no abortion debate. Or at least the debate is unconnected to the reasons people on both sides feel so strongly about it. What passes for an abortion debate is a jewel of the political hack’s art: a big issue that is exploited without being discussed. In the Virginia governor’s race this year, both candidates said they were personally morally opposed to abortion, and both accused the other candidate of falsely accusing him of intending to act on this moral belief, which both of them denied. And both of them, in this last particular, were probably telling the truth.