Catholics, Abortion, and Voting

I would like to pick a fight. And by pick a fight, I mean have a reasonable and fruitful conversation. Policraticus of Vox Nova poses the question:
“Did liberal justices hijack the Supreme Court in 1973, forcing legalized abortion on the whole country?”
His answer: A quick look at the Justices who made that horrendous decision seems to suggest otherwise.

The rest of his post contains the following reasoning:
(a) History shows that many Supreme Court justices appointed by Republican presidents were either responsible for the original Roe v. Wade decision or its preservation

Sidenote: Justices appointed by Republicans are necessarily conservative

(b) Therefore there is no good reason to believe that a justice appointed by a future Republican president, even a staunchly pro-life one, will oppose Roe v. Wade

(c) Conclusion – in terms of the Supreme Court and abortion, there is simply no reliable practical difference between a Republican president and a Democratic president.
This reasoning is flawed, and I would argue, dangerous. Let’s go through the argument.

The author focuses on one aspect of the legal battle (i.e. who appointed whom?) at the Supreme Court and ignores just about every other consideration. First, he assumes that justices appointed by Republican nominees before the advent of Roe v. Wade were somehow vetted for conservative jurisprudence. Obviously, this is not the case, because before Roe, the attention of the country had not yet been drawn to the activist court, and the Republican Party had not capitulated to the country’s anti-Roe constituency. Thus it is flawed to think that simply because a justice was appointed by a putatively conservative republican, that justice holds or should hold judicially conservative views. In fact, all of the justices who signed Roe into law were liberal justices, despite the fact that Republican candidates appointed them.

Even if my preceding reasoning is flawed, it does not follow that there is no good reason to vote for a candidate who, at least in principle, supports originalist or constructionist judges. This is because in this case we ought not to look at simply the history of judicial appointments, but at the present intentions of the two Parties. It is a well-known fact that that the party that currently defends the jurisprudence of the justices who uphold Roe is the Democratic Party. Witness the recent statements of NARAL endorsing Barack Obama. And on the other side of the coin, by and large, the Republican Party supports in principle justices who oppose the judicial activism that wrought Roe v. Wade. Consider the endorsement of, for example, National Right to Life.

Stepping back from the particulars, I think it is clear the author is trying to convince Catholics that we need not to consider abortion law in our political considerations as Catholic voters. He wrongly argues that the appointees of either party will not be much different, and therefore will not have much effect on the law - this is manifestly not the case.

To see one reason why this is so, think of the difference between the two appointees the sitting President has made – John Roberts and Samuel Alito. Both are known to oppose Roe in principle and are demonstrating good prudence by waiting until they can actually effect a change. Now think of who the appointees would have been under a Kerry presidency. No reasonable person can dispute that Kerry would have appointed liberal justices who believed in the legitimacy of the Roe decision.

Or, consider an argument from authority: recently, the eminent liberal legal scholar Jeffrey Toobin suggested that a McCain presidency will likely bring about the rapid end of Roe v. Wade (HT: Opinionated Catholic). Perhaps he knows something that Policraticus does not?

Finally, I would note that the author is arguing against probability, and he knows it. He says that there is no guarantee that a justice appointed by a Republican president will work to overturn Roe. And certainly no one would argue there is an absolute guarantee. No such guarantees exist about anything politically – for example, there is certainly no guarantee that a President Barack Obama will absolutely guarantee a working system of government-funded health care. For that matter, there is no guarantee he will do anything good for the poor. Johnson never won his “War on Poverty.”

Policraticus' arguments endanger the success of the legal change we are so close to achieving - legal change that will help fight the culture of death.


James H said...

As to Toobins comments I referenced he has made them twice

At my ole Law School a few weeks ago in Baton Rouge

and more recently in the New Yorker here


Darwin said...

Chris Blosser linked to an interesting article recently from Human Life Review about the evolving stances of the two parties on abortion issues. The short version is that the current clear division on the issue between the parties did not solidify until 1980. The long version is very much worth reading:


Poli shows no understanding of the fact that all pre-Roe Republican presidents since WW2 were liberals -- conservatives did not successfully take over the Republican party until after the cultural melt-down of which Roe was one symptom.

It's true that Republican presidents since then have not been successful in appointing only anti-Roe justices. (Souter, Kennedy, O'Connor were all failures, in part or in full, in this regard.) However, it's equally clear that with the modern political division makes it far more likely that we will get Anti-Roe justices out of a Republican than a Democrat -- since in the latter case this would only occur through some sort of Saul-to-Paul like conversion.

Finally, it is only through pursuing a originalist/constructivist judges that we can have any idea _what_ our laws will be taken to mean from day to day. The really threatening thing about the liberal approach to SCOTUS which Obama has explicitly endorsed is that it seeks to interpret the law as saying whatever it is that he thinks would be most helpful at the moment. (He uses the phrase "justice, not law" to denote this.)

Some Catholics, I think, are drawn to this because they see the possibility of persuing natural law rather than positive law through this approach -- but given the rabidly secular nature of our culture, what we'll get out of such a mentality is not natural law but a weather-vane court.

Anonymous said...

Brennan was a liberal activist. Marshall was a liberal activist. William O. Douglas was a liberal activist. Blackmun was the Souter of his day, a relative judicial non-entity appointed solely because of his friendship with the Chief Justice Warren Burger. He would end up perhaps the most liberal member of the Court. Potter Stewart was an initially conservative jurist who went in a generally leftward direction on the Court. Powell was the Sandra Day O'Connor of his day, an unpredictable wild card. Warren Burger probably gave the task of writing the majority opinion to Blackmun in order that he would write a moderate opinion. In his clueless concurring opinion in Roe, Buger stated "I do not read the court's holdings today as having the sweeping consequences attributed to them by the dissenting justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the court today rejects any claim that the Constitution requires abortions on demand." In Thornburgh v. American College of Obstetricians and Gynecologists, 476 US 747, Burger in Dissent called Roe to be overruled. His eloquent dissent is worth reading and is linked below:


Zachary said...

Thanks for the comments guys.

I intend to check out all of the articles you have suggested.

The backhanded attempt made - by Catholics - to justify voting for Democrats despite their manifest intention to continue the abortion regime abortion drives me crazy.

I'd prefer if the liberal contributors to Vox Nova would meet the actual arguments than try to maintain some strange academic neutrality, as if they have no intention in pursuing the questions they put forth.