Strengthening Constitutional Self-Government

No Left Turns

The Five Catholic Justices Vote Together to Limit Abortion

But they gave very different reasons. Alito and Roberts simply joined Kennedy’s opinion that was, although very detailed, very limited in scope and uncritical of PLANNED PARENTHOOD v. CASEY. Only Scalia and Thomas took the occasion to oppose the Court’s abortion precedents in principle. So Alito and Roberts said nothing to suggest that they opposed "abortion rights," with the exception of the use of a very rare procedure.

Discussions - 36 Comments

I haven't read the opinion, but I think we should be wary of Justice Scalia's approach. His reading of the Constitution is majoritarian...slavery would be fine if implemented by an Amendment. His principled stand is only that abortion is an issue for the legislature. I think that, for the most part, that's Professor Jaffa's criticism in his "False Prophets of Modern Conservatism."

For me, a strict structuralist approach is problematic, as certain rights I think are implied by the Constitution and the 14th Amendment. Obviously the debate becomes where to draw the line, but to deny that the liberty interest doesn't have in it certain guaruntees that are not for the legislature to touch is dangerous, and majoritarianism, on its own terms, is not any more principled then a stand on fundamental rights that emanate from the 14th.

Well, the Constitution is a majoritarian document. It only took effect because a majority of states ratified it. It can only be modified if a majority want it to be modified. (Apart from the modifications the Court makes outside of the Constitution, of course.)

The trouble with liberals, which is what Jaffists are, is that they imagine that some system can be devised which can eliminate evil. Usually this system involves the establishment of some powerful group, a Council of Virtue, which will dictate Goodness to the unwashed masses. You people really want a system in which moral decisions are taken out of the hands of the citizens.

The irony here is that it was not the Supreme Court which ended slavery, and it could not have been. It was the much maligned majority.

Whatever the English majors may think it is not the role of judges in our system to dictate morality to the people, as if they were some Council of Cardinals.

If you want so badly to live in a theocratic state I suggest that you set one up, separate from the United States.

The reason we have things such as Roe and Casey is because we have justices who think in the manner which Fred and Jaffa want them to. Kennedy and those like him truly believe that what they are doing is what is morally right, and that this moral rightness justifies them in overriding the majority and ignoring the text of the Constitution.

I agree with John on this one. Thomas Moore's famous statement before his execution "I remain the king's good subject, but God's first," is a fine and noble sentiment, but it would be a dangerous principle for running a democratic polity. As Abe Lincoln reminds us, this is a government of the people, by the people, and for the people. The very last thing we want is for unelected officials (e.g., SC Justices) to rely on their "inner moral compasses" rather than the fully written and constituted law of the land. This is precisely the problem that has led to the "culture war."

And, while it's true that the 4 stalwarts (and one revolving door) are Catholic, I'd like to think that good (i.e., believing) Protestants would vote the same. We are no longer in a battle of competing church dogmas, but one of competing worldviews. Believing Catholics, Protestants, Jews (and yes, even Muslims) need to unite in preserving some semblance of moral decency in our society.

His reading of the Constitution is majoritarian...slavery would be fine if implemented by an Amendment.

Without reading too much into the contextual meaning of the word fine, this statement is correct if the word fine is replaced with the word legal. An ammendment overturning 13/14/15 would seem to make the reprehensible the Law of the Land.

We don't like activist judges, unless they're preaching our brand of activism. Blech, thank you very much.

What strikes me -- 7 of the 9 were appointed by Republicans, yet only a 5-4 majority was carved out, with Stevens and Souter crossing sides. Not surprising the Dubya's appointees merely concurred.

Who joins Thomas and Scalia to replace Rehnquist? Wither scAlito?

Who joins Thomas and Scalia to replace Rehnquist?

Bush promised justices like Scalia and Thomas, and delivered Alito and Roberts. While not terrible they are not as good as Scalia and Thomas.

Giuliani is saying he will appoint justices like Alito and Roberts. If the trend continues we can expect to get people like SDO and Kennedy.

Maybe Alito and Roberts are still learning the job? I used to read about what a light-weight Thomas was, and now look. He's our hero.

I had figured that the reason there are so many Catholics on the Supreme Court is that conservative Protestants are fair game for Democrats in the Senate in a way that Catholics can not be, politically. Democrats have to be careful of their Catholic voters, and might not turn on pro-life Catholics for that political reason. Hence, a conservative Catholic has a shot at a court seat, while a conservative, and pro-life Protestant would not have a snowball's chance in hell.

I'm all for majority rule, except when the democratic masses cross some Constitutional or moral line. If the majority decided to kill all Muslims in our midst, I would have to object. If the majority view was that we should restrict Muslim immigration, that I could consider because it is not a life and death matter, except in exceptions.

Hadn't thought of it before in quite that way PETER, but it is interesting.

I'm all for majority rule, except when the democratic masses do something I think they shouldn't.

Indeed. That's very liberal of you.

If the majority decided to kill all Muslims in our midst, I would have to object.

The important word here is the first person pronoun. You can and should object. What you cannot do is expect the courts to implement your policy preferences on your behalf. That is not their role.

John and M. Shawn Anderson are right in that the Constitution is a majoritarian document. "Legal" was a better use than "fine." I cede those points.

However, while the Amendment process may work as an added layer of protection against a mob-rule democracy, I still have lingering doubts about its ultimate effectiveness (for me it was the proposed marriage amendment that had me worried...what a bad "conservative" I am). For me, tyranny of the majority can be and is just as bad as a tyranny of one, or even (for this purpose) the tyranny of the few. I think lines have to be drawn. Unfortunately, those lines in our modern jurisprudence are taken from Amendments (which in itself is problematic), and has led to major overreaching problems (hence this concern about an "activist" court). Nevertheless, I believe that there are certain rights necessary for living in a democratic-republic, I think that strict literalists and structuralists, or what-have-you, undermine such rights in their reading of the actual text of the Constitution. That's why, as I am sure the crowd will scream, I look to the Declaration and Natural Right. Now, tear into me.


tyranny of the majority can be and is just as bad as a tyranny of one, or even (for this purpose) the tyranny of the few

That may be the case, but it is really not relevant. You are mixing up law with philosophy and morality. The historical fact is that our system of government was set up in reaction to the government of the one and the few, in the form of kings and aristocracies. In other words, it was designed to err on the side of tyranny of the majority, for better or for worse. The Founders believed it was for the better, clearly. Otherwise they could very easily have created an explicit oligarchy.

I look to the Declaration and Natural Right.

I think its great that you do so. More power to you. The issue is whether or not judges, in theory the servants of the state and the people, should look to natural law as granting them the power to oppose the will of the people and the state they supposedly serve, and in some cases to impose their own will in the guise of natural law. Because at the end of the day, "natural law" basically means "what I believe is right." It is not some well documented and well thought out body of laws. At best it is a collection of general ideas and principles.

The big question here is not that complicated. It is "Who decides?". Should the people, such as yourself, shape the laws through their understanding of natural law and morality? Or is this a task for which the common man is ill suited, one best left to doctors of philosophy and judges?

Jaffa and his followers side with the liberals in picking the latter answer. There is nothing at all in the outlook of a Justice Blackmun or Warren or Kennedy which Jaffa can object to. He may quibble with them about some of the details of how they apply their power, but he would never suggest that they do not have that power to begin with.

If people are going to go about the "principles of the Declaration", could they at least acknowlege that the Declaration consists of more than the words "all men are created equal"? For example, it also says that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

If there is some anti-majoritarian sentiment hidden in there then I'm not catching it.

I know it means little, but John in comment #11 has laid out all the thoughts I had when I read Fred's comment #1. I completely agree.

I think Fred wants some Montesquieuan liberal State, but if he had read his Polyibus he would know no mixed constitution can last for long. Eventually one element will over power the others. The American mixed regime finally fell during the progressive era with the direct election of the Senators. States no longer had any way to resist the federal government, so the democratic element of the American regime assumed control.

One additional thought: Conservative commentators always state they wish the Court to overrule Roe, so that STATES could regulate abortion. They claim they want federalism to triumph. This would not be the case however, abortion would be regulated by the FEDERAL government. I believe the partial birth abortion ban in controversey in this case was a federal law.

It is also clear the federal government would have the power to regulate abortion. Any notion it would not was shown false in Raich. The Court held the federal government can control the production of marijunia, even if wholly intrastate. If the FDA can regulate drugs and the like, I do not see why it could not regulate abortions.

So, four justices think partial-birth abortion is a constitutional right?

No one should panic about Roberts and Alito. They are probably trying not to alienate Kennedy, and to preserve whatever chance the next conservative nominee may have in the Senate. Scalia's and Thomas's bomb-throwing is gratifying, but it hasn't produced results on the Court, and it may well have harmed us among certain key senators who must vote on SCOTUS nominations. We won't even begin to know how far Roberts and Alito are willing to go in restoring the genuine Constitution until (unless) there are five conservatives on the Court. Right now, there are four.

David Frisk is right, of course. Still, I'm not thrilled with anyone who signs his name to an opinion that's as muddled and as unprincipled as Kennedy's--even if he reaches the right result. There must have been a way of concurring without bomb throwing and needlessly alienating...

Good point. Still, a separate concurrence by Roberts and Alito, when Scalia and Thomas had their own concurrence, might have been seen to imply a rejection of the Scalia/Thomas take on abortion. Knowing when to do or say nothing is a good political skill.

David, you are so Machiavellian sometimes. When does principle ever win over pragmatism? When do you ever say "ENOUGH!" as you slip down that slippery slope of acquiescence in the service of "getting along."

We won't even begin to know how far Roberts and Alito are willing to go in restoring the genuine Constitution until (unless) there are five conservatives on the Court. Right now, there are four.

If we don't know how far they'll go to restoring Constitutional rule, how do we know they're conservative? Seems like one would follow the other. Conservatives are in no-win positions (are have been completely defeated) on so many issues of policy, because they've been unable to defend the Constitutionality of their positions. Or, they've just plain been unable to defend the Constitution, period.

I'm supposed to swallow the stink of voting for some non-conservative POTUS candidate, because said candidate will nominate more conservative judges than the other side? How much more conservative? Or, should I say, how much less liberal? Sometimes, not a whole lot.

Continuing to acquiesce to the center (READ: LEFT) of the Court, in some bizarre attempt at gladhanding, does not serve the best interest in restoring Constitutional Authority. That is truly what we're talking about. The "Supreme Law of the Land" has all the teeth of a paper-tiger, merely awaiting some high-minded sophist to bend the meaning of the Law to suit their personal whim. What good is the rule of law, if the rules sat down in said laws have subjective meaning?

If Alito and Roberts truly are of a conservative Constitutional Philosophy, then they should adjudicate as such, post-haste.

19: Shawn, your point is perfectly valid for activists and other little citizens like ourselves. It is generally valid for politicians and candidates, and for pundits. It is not valid for conservative justices who, by their rhetoric, can directly help or hurt the cause of constitutionalism with their confused colleague, Justice Kennedy and with the handful of mushy-middle Senators who will determine the prospects of any future conservative nominee. In short, wake up and smell the coffee. Get real.

18: Dain, principle should win out when it's morally inescapable, which it wasn't in this case, or when you can make it stick, which wasn't possible in this case. You see, four is a minority of nine. Only five makes a majority.

Sorry, David, I think you are wrong. Perhaps the logic of "win at all costs" is important in electoral politics, but in the SC symbolism is far more important. Also, Reagan didn't push America in a new direction by pretending to be moderate to gain a majority. He just said what he believed in, convinced enough people that he was right, and went for it.

Moreover, I notice that the Democrats never seem to have this problem. They don't seem to fear being who they are (as unpleasant as that is), and yet their punishment is pretty minimal in my view.

I suggest that, at least in terms of legislative and judicial action, we be who we are and stop compromising with the likes of Kennedy. Perhaps moving to the middle is necessary to win elections, but at some point you have to insist that your politicians and officials actually represent you.

Frisk: (20)

I wake up and smell the coffee every morning. I might suggest you abstain from smelling other particular beverages, as it seems you've been robbed of a clear head on this.

Let me remind you of something: Kennedy is a Reagan appointee. Souter we got from Bush Sr. Stevens from Ford. Warren himself was an Eisenhower appointee, a Liberal Wolf cloaked in Conservative lambswool. Republicans have nominated 10 of the last 12 Justices to sit on the Bench, yet of those 10, we've only managed to sit 3 Conservatives - Rehnquist, Scalia, and Thomas.

.300 is great in baseball. This isn't baseball.

I'm supposed to believe (and accept!) that Alito and Roberts are merely pretending to be as moderate as they're portraying, in order to win Kennedy, a man who, for 20 years, has been firmly entrenched in the middle of the Court, over to the side of the Conservatives.

Or perhaps, in some Rovian gambit, they're pretending to be moderate so that, in the chance that the Republicans hold on to POTUS, and a seat comes open on the bench, that the sitting president can nominate another wolf-in-sheep's clothing, and said "conservative" will get a clear pass through the confirmation hearings. Then, when we have 5 "conservatives" on the bench, the trap will be sprung, and out of our Moderate Trojan Horse will come 5 Conservative Justices, ready to undo the damage perpetrated by the Warren and Berger courts.

You're right. I need another cup of coffee.

23: Dain, Roberts and Alito do need to win an election. They need the vote of Justice Kennedy. They also need the Senate to "elect" to confirm another constitutionalist to the Court.

24: Shawn, you're simply pointing out that Republican presidents have appointed a lot of liberals to the Court. And whaddya know, you're actually right on this one. What in God's name does it prove? How does it weaken my point? I'm afraid we will need much better thinking than yours if we are to prevent the full imposition of the Ginsburg Constitution on this country -- let alone return to the true Constitution.
This is not a game for children.

And my point, David, is that they are much more likely to succeed in their actual duties if they stick to their guns and vote their values (those that reflect the Constitution, at least). Everything is politics with you, David...but the real world is actually deeper than that. If the GOP wants people of energy and passion, it has to set the example and prove it means business...and you can't do that if you fritter or compromise away your values at every turn.

Conservativism without courage or conviction is a loser...period. The Left understands this, and for all their loonish behavior, they are never short of passionate people. These people don't quit, nor do they compromise. They wait for us to compromise away our hold on the people's imagination, and then we get voted out as "go-along and get-along" losers.

Frisk: 26

You assert (in #20) that by Alito and Roberts adjudicating "moderately", that it will assist in getting conservative judges confirmed to the bench. Or, that they'll be able to turn Kennedy from his Liberal ways toward True Constitutional Conservativism.

My point is two-fold:

Firstly: Kennedy is entrenched in the Middle of the court. There exists no amount of pursuasion from Roberts or Alito that is going to change that.

Secondly: It's a risky proposition to adjudicate moderately in the hopes of easing confirmation for future conservative justices. Republican's don't even nominate conservative judges, let alone get them confirmed.

In either case, your defense of Roberts and Alito fails to meet any standards of feasibility or wisdom. And I stand by my original: If, in fact, these two judges are conservative, they should adjudicate as such, and not, as you suggest, "hold back" for either the impossible (turning Kennedy) or the extreme long shot (getting more conservatives confirmed).

Dain, your last post applies an analysis of how to win in elective politics, one I mostly agree with, to what Roberts and Alito should have done. Don't you understand the difference?

Shawn, it is really tedious to argue with you and Dain about this. Let me make one last attempt to get through to you. I do not say that Kennedy can become a constitutionalist. That is quite unlikely. I do say that Kennedy could have gone the other way on this very important PBA case, and that his vote is winnable on some future abortion cases -- not that he will make a genuinely constitutionalist analysis of abortion, but that he might agree in some future cases, as he has in this one, with the RELATIVELY more constitutionalist and pro-life position. Which, I suggest, is a very worthwhile thing. I further suggest that the Scalia/Thomas Roe-must-go stuff hurts us with Kennedy and with a handful of extremely important senators. None of whom, I believe, care about public opinion on abortion, and none of whom are open to the truly constitutionalist argument.

Shawn, your claim that "Republican's [sic] don't even nominate conservative justices, let alone get them confirmed," is utterly wrong. You are entitled to your own opinions, but not to your own facts. Conservatives nominated: Rehnquist, Scalia, Bork, Thomas, Roberts, Alito. Confirmed: Rehnquist, Scalia, Thomas, Roberts, Alito. You're right to be skeptical of the chances that another conservative will be confirmed by the Senate. You're wrong to dismiss the possibility. You're the kind who will flip over the chessboard and walk away from the game just because things look bad at this time. The Darth Bader Ginsburgs and the Schmuck Schumers and the Ted Kennedy are a fearsome lot, indeed. But they are not ten feet tall, and they need not win just because they are powerful and ruthless. Don't be so defeatist. And don't frigging lecture me about meeting "standards of feasibility or wisdom." In the context in which you're trying to use it, it's a meaningless phrase. Instead of continuing with your pathetic righter-than-thou posturing with what you stupidly imagine to be a liberal (I'm miles from being a liberal), why don't you migrate to some other site that calls for a little less brainpower than we like to see on NLT.

David, I do understand the difference, but do you? Here Roberts and Alito (perhaps) softened their stances to win an ally, but will there be tit-for-tat? Once you start playing political games with what should be Constitutional decisions, then you have an activist court. The standard becomes whatever you can get Tony across the hall to sign off on. The evidence of the erosive effect this has on conservatives lies before you...this thread. Such compromises on core principles send lousy signals to the faithful -- and force smart people like yourself to spin the fallout.

I can see the strategy, but I just have my doubts that "romancing Kennedy" or any of these people will pay off in the long term. I think Kennedy will do whatever he damned well pleases, and sucking up to him won't accomplish a thing (other than demoralize the base).

You're looking at the glass half-empty. Please ackowledge that it's also half-full. The PBA decision is a significant victory. Without Kennedy, we would have had an impressive dissent, sure. But pro-lifers would have felt far more frustrated, and rightly so. Getting a semi-liberal to sign onto, indeed to write, a semi-conservative opinion on this issue is a real milestone. We don't know where the road leads, but don't assume it's hopeless barring an electoral earthquake. And don't overestimate the value of the cards-on-the-table, damn-the-torpedoes concurrence you wanted from Roberts and Alito. These men, I'll wager, are not only very smart but very serious about constitutionalism. They are pursuing a different path from the one you want. The most effective, most durable, outcome is not a direct reversal of Roe and Casey -- even when (if ever) we have 5 justices to vote for this, or even 6. It is best for the cause that Roe/Casey die a slow but sure death. A frontal assault will scare the soccer moms before their minds are prepared to see abortion in the fundamentally different way that is necessary if an anti-abortion regime is to stick. Legitimacy, for both good things and bad, builds slowly, and is eroded slowly.

David, I understand your point, but I wonder if you see mine. The SC, like any social group, has a tendency to substitute intra-group politics for broader principles. It becomes a habit...pretty soon you are more concerned about amiability within the group than representing your own values...they call it peer-pressure. I'll take this victory, but only if it's a temporary tactical choice rather than a habit-forming modus operandi.

Also, you need to take seriously the notion that such tactics, no matter how clever or well-intentioned, often give off signals that are debilitating to our larger goals. They encourage cynicism and fatalism within the ranks...such tactical compromises must be used very sparingly.

Finally, I doubt that moderation on the part of Roberts and Alito accomplish many longer-term goals. Yes, perhaps they put us on the right road, but they will NOT sway the Democrats in voting for real conservative SC nominees. And, just as importantly, such compromises make a mishmash of jurisprudence...just look at the Powell/O'Connor "legacy" on affirmative action. Yuck.

Dain, I don't think it's fair to compare Powell's and O'Connor's idiocy on reverse discrimination (let's call it that, please) over the years with Roberts' and Alito's refusal, in one case, to sign onto an anti-Roe concurrence. In the first case, justices reached the wrong result and gave lousy reasons (there are no good reasons for reverse discrimination). In the second case, justices reached the right result and saw no need to attack a line of prior cases into the bargain.

I certainly don't believe that most Democratic senators will vote for the next conservative nominee, if we get another one in the forseeable future, unless, conceivably, he/she is replacing Scalia. However, a couple of Democratic senators might -- if they perceive such a nominee as a POSSIBLE vote to uphold Roe. In addition, Murderers' Row (the Democrats on the Judiciary Committee) and their allies in the anti-cultural interest groups (ACLU, NARAL, NAAC), will have less ammo to use with the handful of genuinely undecided senators.

It's true that the appearance (the reality being unknowable right now) of unwillingness to oppose Roe among two of the four conservative justices is probably discouraging to some in the base. But conservative justices, it seems to me, are primarily responsible for getting the Court to issue the greatest possible number of constitutionalist decisions. Their role in educating the public, is significant, but secondary. Their role in keeping up, or reviving, the spirits of the base is perhaps not insignificant, but it's tertiary.

H.L. Mencken said: An idealist is someone who notices that a rose smells better than a cabbage and concludes that it will also make better soup. Don't, in this context, be an idealist.
It makes little sense.

Bottom line: Give these extraordinarily intelligent men, Roberts and Alito, a little more credit than you have. And in terms of principle, let's see how they look a few years from now.

35: RC2, that's right. Roberts, unlike Rehnquist, that dour old Swede, is looking beyond his own conscience to the big picture -- thank God. He wants to make real imprint on American government, and he's consciously and I suspect very shrewdly playing a very high-stakes game. We had damned well better hope he wins. I, for one, will not be carping at him, at least for quite a while -- assuming, of course, that he doesn't sign onto any outrageous major opinions.


Two immediate points:

1. Of course the R's have nominated conservatives; I stipulated as such in #24, although I had erroneously omitted Bork. Thank you for the reminder on that account. My statement in 28 was hyperbole meant for effect, and I apologize for being less-than-clear. I will not stipulate that Alito and Roberts are of the same conservative cloth that Thomas or Scalia is. To date, they've not done anything demonstrating that.

2. Also, in #28, I did not mean to imply that you were being unwise. I think it unwise for Roberts/Alito to hold back on their conservativism in the hopes of winning confirmation votes for some future judge.

That asside -- You and I have a fundamental difference when it comes to how we view the Judiciary. You would treat concurring statements, dissents, signatories, etc as commerce to be bartered against each other for some future gains. To Wit:

[T]hat his [Kennedy's] vote is winnable on some future abortion cases (emphasis mine)

That's politics, and while there is indeed a political side to The Law, that side belongs in the Legislature. I prefer an apolitical judiciary, and believe that would be the Founders' preference, also. As a point of clarity - I do understand that some "behind-the-scenes" maneuving occurs on part of the Chief Justice. Perhaps it is naive of me, but I'd prefer to believe that votes on particular cases are not up for trade, but rather that he used his pre-decision maneuverings for argument and deliberation.

That's just a fundamental disagreement between the two of us, without any semblance of reachable middle ground. You understand of course, that I think the goals motivating Roberts and Alito's political action on this case are unreachable. But ultimately, that's immaterial. The judges are there to adjudicate the Law, not to win votes for some future nominee, or to sign an opinion today for a vote on a case tomorrow.

One other point that needs made: Last time I checked, you're not the proprietor of this blog. Neither, apparently, are you one with posting privileges outside of the comments section. That said, you'll understand if I wholly ignore your invitation to vacate these premises.

I will meet you half-way, however. This will be my final comment on this thread. Hurtling insults at one's intelligence, or perceived lack-thereof, hardly constitutes civil discourse, and I will not contribute to its continued absence.

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