Doing the Math

I’m starting to feel weary and gun-shy about political discussions in the public sphere (among bloggers or otherwise).

It feels to me that so few people are stopping to take a deep breath, look at issues from several angles, think about first principles, likely outcomes, the constraints on the possible. Even commentators that I’m generally in sympathy with are precluding any discussion besides strict agreement with their own take on matters.

I’m really feeling this with the Roberts nomination and the related discussion of Roe vs. Wade. Yes, I found the head-fake to Clement deplorable: a petty bit of political mockery from the inner cirlces of the Administration, a “hah-hah, you thought maybe for once we’d actually try to play to the center! Hah-hah!” Yes, this is about trying to get the Supreme Court to overturn much of what it has accomplished in the last twenty years, which makes me sad for a variety of reasons. Yes, I’m concerned about the threat to Roe vs. Wade.

But at the same time, here’s some other things on my mind.

1) Do we really want to be in the position of saying that we will oppose a candidate who has great qualifications for the Supreme Court strictly because of his apparent legal and political ideology? There’s only one person on the current Court who I think is straightforwardly a blemish on the institution, and that’s Thomas, who is clearly not qualified and who doesn’t even have a vague hint of a judicial temperment. Even Scalia was an intellectual asset of sorts before he started going off the religious deep end and cutting his originalism to fit instrumentally partisan ends. I think the ideal Supreme Court should have ideological and philosophical pluralism, as long as all of its members are intelligent, knowledgeable and persuadable, capable of adjusting their views in any particular case based on the soundness of the arguments presented to them. I understand that the arguments against using a “litmus test” are offered cynically by many on the right (and the culturally conservative right isn’t even pretending any longer that they don’t have their own litmus test). At the same time, I’m always thinking about where we want to be as well as where we are, and where we want to be, I think, is that the Supreme Court should have a different ethos of selection than other branches of government. I want to vote for Congressional representatives who will speak for my views on the issues, and a President who will lead in a way consistent with my political values, but I don’t want the same direct correspondence between my own political views on particular issues and each and every Supreme Court justice. Indeed, if we value the Warren Court’s legacy, that’s exactly what we’re saying.

2) That’s all pretty abstract. Let’s get down to the real deal. Do you think that there is any way in hell to stop the confirmation, barring the revelation of some dark secret about Roberts? Somebody tell me how the opposition pulls that off. No, don’t tell me to get angry, demonstrate, write letters to my (avowedly and inflexibly Republican) Representative or my (batshit insane and wimpily moderate) Senators. Not unless you can tell me about the unknown terrain between getting! really! angry! and “blocking the nomination with the result that a more moderate person is nominated next time”. So if the nomination isn’t going to be stopped, what should it be about? How about a longer-term strategy where the implications of the shift in the Court are made clear to the American public, where the Democrats in the confirmation process set themselves up as the reasonable guardians of American consensus as opposed to the irresponsibly partisan fringe-elements dominating the Republican Party? And so on: all things which seem to me necessarily preclude an apocalyptic, fight-to-the-finish, junkyard-dog strategy for opposing the Roberts nomination. There’s some consensus on the left that the longer-term strategy is the way to go, but it’s often followed by advice to hit Roberts himself hard, or to be fierce in the hearings, and these are incommensurable.

3) On Roe vs. Wade. Amanda Marcotte at Pandagon is unsparing: she says drop the “horseshit argument” that securing the right to choose abortion is going to have to be conceded back to state legislatures. There’s a lot of opinion behind her on this point. It’s an argument that was newly galvanized by Benjamin Wittes’ article “Letting Go of Roe” back in the February 2005 Atlantic Monthly.

I think that Marcotte and others are right about the consequences of accepting Wittes’ argument: there will be some states in which a choice that many of us regard as an expression of a larger right to privacy and self-ownership will be denied to women. In practical terms, it will be denied in particular to poor women who lack the resources to travel across state lines. I agree that if you see choice as part of a fundamental right, accepting that it is not a universally guaranteed right is extraordinarily painful.

But Wittes’ argument is not “horseshit”, and it’s not “looking for a way out of the fight”, both cheap responses to an important debate that we’d better have now in a much fuller and more mutally tolerant fashion. Wittes observes that centering the debate on Roe vs. Wade has prevented those of us who believe in choice and in the right to privacy and self-ownership from securing that right either constitutionally (with an amendment) or through state and federal statutes. We’ve put all our eggs in the Supremes’ basket. More importantly, Wittes is right, in my opinion, to note that our reliance on Roe has kept the cultural conservatives from having to actually shoulder the political cost of passing specific statutes that take away a right that the majority voting population of most states supports, from having to actually do something that will have concrete consequences in terms of the everyday lives of most Americans.

You could legitimately object that Wittes’ argument implies that we should never rely on the Court to do anything, in fact, that all rights should be secured by statute. Should we overturn Brown vs. the Board of Education, too? But this goes to the deeper heart of the abortion issue. The fact is that the Court’s civil rights decisions were, first off, supported by a wave of legal and political reforms. But second, they were supported by a broad and abiding moral and cultural consensus across the United States. The glorious triumph of the civil rights movement was that it simultaneously forced the political order to abide at long last by the guiding principles embedded at its foundations and it made white Americans who had not wanted to see or know or truly care about racial inequality to at last care, to recognize how far the country was from a minimal realization of its highest ideals.

Abortion has simply never achieved the same status. The right to privacy and self-ownership is supported by a relatively wide social consensus, but that consensus peels away significantly around abortion. Yes, at least some of the opposition to abortion is a reactionary, unacceptable opposition to the wider right of privacy, and some of it is unmistakeably motivated by a desire to control women, or to discriminatorily deny them a general right. Some of it is driven by the same kind of proxy exportation of fundamental social and cultural conflicts that appears in debates over gun control, free speech rights, and so on, where abortion is just a synecdotal device expressing a deeper cleavage. But some of the separation of abortion from the wider right to privacy is driven by an authentic if also ambivalent sense that abortion is a place where the right to privacy and self-ownership gets authentically complicated. Complicated because a child is a rights-bearing entity in its own right and because children, even in utero genuinely involve more than one person’s hopes, fears, wishes, desires and rights. Any argument on behalf of choice has to take that messiness and the unease it generates seriously, and that’s something which those of us who support Roe didn’t do for a long time.

We even have to take the more obdurate or extreme opposition seriously in that it exists and it persists. There was for a long time an assumption among supporters of Roe that the Court’s protection for the right to choose would eventually, by osmosis, create a consensus, that the opposition to Roe had the same archaic and self-evidently backward character that the opposition to civil rights did. That history would dispense with the opposition to choice, and that all we had to do was keep strong and organized amongst ourselves. The folly of that approach has been demonstrated, and I think with more than just abortion. The force of social reform coming out of the 1970s became far too dependent upon guarantees of legal, political or institutional power, far too dependent on a model of enforcement. At a distant remove, that’s what drove speech codes in universities: the mutating, growing belief that changing what people think, producing new consensus views, could be done through an enforcement model rather than through seeking persuasive dialogue with people unlike ourselves. Because persuasive dialogue exposes, requires concessions, is dangerously contingent in its outcomes.

That’s all high-toned talk. So let’s switch gears a little on Roe to practical matters. It’s pretty clear it’s going to be overturned sooner or later, either in total or as good as such.

So then what, if it’s just “horseshit” to talk about other political pathways to securing the right to choose for as many Americans as it can be secured for? Does the campaign for the right to choose in Ireland curl up and die because they don’t have Roe vs. Wade to begin with? You work with what you got. Go to the barricades for Roe if you like, but if you don’t have a Plan B, then don’t spit on the people who do. If you can’t tell me how you actually intend to keep Roe from being overturned beyond getting angry and demonstrating and all that, and you don’t want to talk about the political alternatives, how committed are you really to the right to choose or the wider right to privacy from which it derives?

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60 Responses to Doing the Math

  1. Or, actually, doing so on behalf of the men you think need protecting from us supposedly shrill bitches.

  2. “because it puts all our political eggs in the Supremes’ basket, and we’re seeing why that’s perilous now.”

    Again, I guess my answer is–compared to what? Leaving aside that it hasn’t prevented statutory protections, why is a Supreme Court decision less stable than legislation? After all, the former has endured a Republican takeover of federal and state governments; the latter wouldn’t in many cases. A constitutional amendment, of course, would be superior–and for that matter it would be nice to have all progressive achievements embedded as constitutional amendments–but that’s not a viable option. And while the failure to achieve consensus over Roe is unfortunate, there are many issues for which is the case, and overturning Roe wouldn’t *help* consensus emerge–it would just make the policy oitcomes worse.

    In politics, there are no guarantees. (It’s entirely possible that the VRA may not be renewed.) I agree when you say that Supreme Court decisions depend on political support. But the lesson to be drawn from this isn’t that it’s not big deal if Roe gets overturned; the lesson is that it’s really important to win elections.

  3. Timothy Burke says:

    I think civil rights is a good comparison case. You’ve got the Court’s decisions; you’ve got a whole host of quotidian legal findings and proceedings; you’ve got federal legislation; you’ve got state legislation; and you’ve got a distributed and robust social consensus. All the consequences of sustained activism at many different levels and from many different voices. Those aren’t enough to ironclad protect some of the more aggressive positive-liberty political projects around civil rights and racial discrimination, like school desegregation or affirmative action, but they’re robust enough to ensure that Jim Crow isn’t coming back. Before anyone says “big deal, that’s a minimal achievement”, the point is that Roe being overturned would return us to the abortion-rights equivalent of Jim Crow.

    There are no guarantees in politics, but there are also social turning points whose institutionalization is so thorough and so distributed that they’re highly robust in the face of electoral change.

    Privacy and self-ownership is politically interesting to me because formulated the right way it potentially interlocks a number of constituencies whose support for abortion rights alone might be weak or tenuous, and it taps into potentially wide-spread social consensus on some issues. If you ask people, for example, whether doctors should always have to obtain consent from you to perform a medical procedure on you, I think you’d get almost universal agreement. So then you ask, “But why should they?” and see what you can do from there.

  4. bitchphd says:

    Savitri, when did I tell you to “shut up”? I don’t believe I have ever told anyone to “shut up” on my site. And I certainly have never told Tim Burke to shut up.

    And I’m surprised, frankly, that you say that I have not posted anything on abortion that deals with the moral complexities, or the importance of reproductive freedoms for the poor. There are several posts on specifically those issues in my “best of” list on the sidebar.

  5. Stuart Buck says:

    Not to change the subject, but:

    There’s only one person on the current Court who I think is straightforwardly a blemish on the institution, and that’s Thomas, who is clearly not qualified and who doesn’t even have a vague hint of a judicial temperment. [sic]

    With all due respect, it is depressing that otherwise intelligent people say things that betray such ignorance of the Supreme Court’s work. Mark Tushnet, a well-known leftist law professor, thinks that Thomas has done interesting work as a Justice. Other knowledgable liberals were forced to come to Thomas’s defense when Senator Reid made his ignorant comments denigrating Thomas’s abilities (see here and here.)

    Try reading the following representative Thomas opinions:

    1. United States v. Bajakajian.

    2. Beck v. Prupis.

    3. Consolidated Rail v. Gottshall.

    4. Egelhoff v. Egelhoff.

    5. Gitlitz v. CIR.

    Where in the above does Thomas fail as a jurist?

    Finally, take note of the remarks of an ERISA lawyer:

    My own evaluation of Justice Thomas’ work is based primarily on his opinions in ERISA and employee benefits cases, the area of law in which I practice. It is a good test of jurisprudential acumen, for no member of the Court has much ERISA expertise. Ability to make sense when venturing into unfamiliar legal terrain is a vital skill for Justices, who are the final arbiters of all statutory and common law but cannot possibly possess antecedent mastery of the whole.

    By this criterion, Justice Thomas is one of the Court’s best jurists. His ERISA opinions are, with rare exceptions, clear, pithy and accurately reasoned. I particularly recommend for perusal his majority opinions in Hughes Aircraft Co. v. Jacobson (1999), which swept away years of confusion about the meaning of ERISA’s exclusive purpose rule, Egelhoff v. Egelhoff (2001), which strengthened and clarified ERISA’s prohibition against state interference with employee benefit plan administration, and Aetna Health Inc. v. Davila (2004), which reduced the murkiness of the Court’s conflicting rulings on the scope of ERISA preemption, his dissents in John Hancock Mutual Life Ins. Co. v. Harris Trust & Savings Bank (1993) and Varity Corporation v. Howe (1996), and his concurrence in Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon (2004), where he catches a fellow Justice in egregious circular reasoning and displays his talent for close reading of the statutory text. I don’t think that any fair observer, including one who disagreed with Justice Thomas’ conclusions, can deny that he argues well and writes forcefully. The contrast with many of his colleagues’ blurry, meandering forays into employee benefits law is striking.

  6. Stuart Buck says:

    I should have included this link to Jack Balkin of Yale Law School:

    Having seen his work over the course of more than a decade, I have no reason to think that Thomas is appreciably better or worse in terms of his lawyerly skills than many other Justices who have sat on the Supreme Court.

    And this:

    Obviously, my readers know that I’m a fairly staunch critic of conservative judicial theories and judges, but I think Thomas has been the recipient of unduly harsh treatment. And that treatment has little, if anything, to do with his performance on the Supreme Court. If anything, Thomas is more consistent than Scalia or Rehnquist, his conservative colleagues on the court. And the fact is that Thomas, even where I disagree with him (and I usually do), has proven to be a much better legal thinker than some of his detractors would have you think. I happen to be one of those detractors, but I’ll criticize him in more specific and substantive ways when need be. To call him an embarrassment to the court is just ridiculous rhetoric and is not the sort of thing a Senate leader should be saying.

  7. Stuart–As I once wrote about, Tushnet expands on his argument in his (excellent) new book about the Rehnquist Court as well, and also addresses the conflict with his previous writings. I think he’s right–he’s a more principled jurist than Scalia, and in the end I think will have been seen as having made the more original contribution.

  8. Stuart Buck says:

    Quite right, Mr. Lemieux, Mark Tushnet’s book does expand on his earlier emails to me, and he continued to defend Thomas’s intellectual abilities and his philosophical interestingness, so to speak. You mention not having read Thomas’s regulatory opinions — but it’s hard to assess Thomas as a whole without doing so. For a long time, he has made something of a specialty out of taking on the most technical and difficult issues in arcane areas of law — ERISA, corporate tax, bankruptcy, etc. It’s impossible to assess Thomas’s abilities if one knows nothing other than that he voted against affirmative action and abortion rights. (I’m not speaking of you here, but I do suspect that Mr. Burke’s knowledge of Thomas’s work is so limited.)

  9. Timothy Burke says:

    Stuart: thank you for this. It definitely makes me think I owe Thomas a reevaluation. My main reasons for my negative assessment of him (neither of which have to do with his confirmation hearings, though I think those were an entirely separate disgrace both to him and to the Congress) have to do with Hudson v. McMillan and Adarand Constructors vs. Pena. But in the latter case, I’d acknowledge that my negative opinion has to do with my distaste for Thomas’ inability to square his own life history with the rhetoric of the dissent, the immodesty of his argument. I suppose if he had been clearer about saying, “I’ve learned that my own career embodies some important mistakes”, it might have been more persuasive to me. His argument in Hudson, though, just plain turns my stomach.

    But you may be right that my judgement of Thomas as intellectually unqualified is really quite unfair–in some ways, reading through your material and elsewhere, it may be that Thomas is in fact a more consistent originalist than Scalia.

    Anyway, thanks. You’ve sent me back to the books to rethink an early impression.

    Just curious, if you get to this, Stuart (and Scott) as to what you think of the material on the Court in this month’s Atlantic Monthly which argues that pretty much the entire court is something of a disgrace in that none of them seem to be able to give clear guidance about the practical implementation of their decisions.

  10. Stuart Buck says:


    I can definitely see how real-world practicality would be an aid in Supreme Court decision-making. To take the most extreme example, Justice Thomas may be right in suggesting that much of the modern federal government doesn’t fit with the actual text of the Constitution. But the practical consequences of issuing such a ruling would be severe. Not to be too utilitarian, but perhaps Justices should always ask themselves, “Is this ruling going to be worth the trouble it’s going to cause?” And without real-world experience, they might not be as aware of what troubles can arise.

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