Thursday, October 06, 2005

Court mythology

The Guardian's Julian Borger today writes about the uproar surrounding President Bush's nominee to replace Sandra Day O'Connor on the Supreme Court, and in the process he makes an infuriating, if all too common, error in his reporting. Speaking of the widespread discontent among Bush's conservative base over his pick, Borger serves up this outrage:
More importantly for the right, she has no public record as an opponent of abortion, and conservatives are furious. Many voted for Mr Bush on the understanding he would put a fire-and-brimstone moral conservative on the supreme court, to outlaw abortion and gay marriage.
At best this is very sloppy reporting. At worst it betrays either remarkable ignorance or a deliberate intent to deceive.

Let's be clear. Conservatives do not now, nor have they ever, expected the Supreme Court to outlaw either abortion or gay marriage. Indeed conservative jurisprudence argues that the Supreme Court has no legitimate role whatsoever in determining whether either should be legal or illegal, and it is for precisely that reason that conservatives object to the likes of Roe v Wade in the first place. The conservative position, as it concerns the Supreme Court, is that each of these issues are issues to be settled at the state, not the federal level.

With regard to abortion, prior to the court's Roe v Wade ruling in 1973, the decision of whether or not to legalize abortion rested with the legislatures of each individual state. In Roe, through the application of rather tortured logic, the court ruled that any state laws outlawing abortion were unconstitutional, and hence invalid. By doing this, the court essentially nationalized the issue, and declared that, with some minor exceptions, abortion-on-demand would henceforth be legal throughout the country. Now, if conservatives had their way, and Roe was overturned tomorrow, abortion would not - repeat would not - be outlawed, as Borger suggests. Abortion would remain legal unless and until the individual state legislatures started to pass laws illegalizing it.

Some of them, of course, would do just that. Many of them would not. Most of them would probably adopt the complex position held by most Americans...regulate abortion more strictly than it currently is, without banning it entirely. But the point is that conservatives judges on the supreme court would not outlaw abortion by judicial fiat, and conservative voters do not expect them to. They merely expect them to allow the issue to return to the political arena, where it belongs.

With regard to gay marriage, what we are currently seeing is in many ways a replay of abortion prior to Roe. At present there is no supreme court ruling with regard to gay marriage, and the institution of marriage is, like abortion prior to Roe, regulated at the state level (although, for the purposes of federal law, the federal government does define marriage as the legal union between a man and a woman). The current legal strategy being employed by advocates of gay marriage is to get gay marriage recognized by the government of one state, and then persuade the supreme court to rule that the full faith and credit clause of the constitution requires all other states to recognize gay marriage. In other words, the hope is that the court will, like it did with abortion in Roe, nationalize the issue, and give to gay marriage advocates a victory in the courts that they could not win at the ballot box. However, just like Roe, if conservative jurists on the court refuse to play along, it will not - repeat will not - result in gay marriage being outlawed. It will simply remain up to each individual state whether or not to legalize gay marriages.

Now, it is true that many conservatives, including President Bush, would themselves like to federalize the issue of gay marriage in order to ban such marriages throughout the country. We know this because Bush himself called for the drafting and passage of a new amendment to the constitution that would define marriage throughout the country as a union of a man and a woman only. But this simply proves the point that neither Bush nor his fellow opponents of gay marriage seek to have the supreme court simply declare gay marriage outlawed. They recognize that they must first go through the political process of actually changing the law, namely the constitution, in order to achieve their end. They do not seek to simply have the law put into effect by judicial fiat in the manner used by abortion rights advocates.

Again, I don't know whether Borger is careless, ignorant, deceitful or a combination of all three. But if Guardian readers are paying for accurate information rather than reinforcement of left-wing mythology, they are not getting their money's worth.


Blogger JohnM said...

The thing that strikes me about these issues and it's the same story with the European courts, is that the right (at least in the blogosphere) argues that the decision must rest with the electorate. The left argues that it must rest with an elitist unelected body.

How the worm has turned.

11:15 AM  
Anonymous Anonymous said...

I had a discussion with some posters on the Guardian Talkboard some time ago about just this issue. Even some of the Americans there appeared to think that abortion would immediately become illegal in the US, should Roe v. Wade ever be over-turned. Some of them didn't know that abortion was legal in some states BEFORE Roe v. Wade. Personally, I am pro-choice but I think Roe v. Wade was simply bad law. It's hard to blame Brits for not understanding US politics when some Americans are clueless themselves, although one would think a reporter charged with reporting on the subject would bother to educate himself. The Guardian is relentlessly anti-American and anti-conservative.

12:02 AM  
Blogger Scott Callahan said...


I don't blame the British for being misinformed, but I do blame the likes of The Guardian for misinforming them.

It is also not a surprise that many people in the States are also ignorant of the facts. Precisely because most of the people in the States are in favor of legal abortion to at least some degree, it is in the best interests of the abortion rights lobby, whose pro-abortion position is far more extensive than that of the population at large, to perpetuate the myth that a change in the court's position will result in the banning of all abortions. And, given that most of the MSM is to a large degree the public relations department for that lobby, it is inevitable that many casual observers (as opposed to political/news junkies) have absored a misinformed view of the issue.


11:32 AM  
Anonymous avaroo said...

NARAL has succeeded in making it appear that the only thing standing between a public that in general supports the right of women to choose and back alley abortions with coat hangers is Roe v. Wade. I was pro Roe v Wade for many years until I recognized that just as the USSC does not have the right to declare abortion ILLEGAL based on anything in the Constitution, it also doesn't have the right to declare a legal right to it, based on the Constitution. There simply is nothing in the US Constitution that speaks to the issue of abortion.

I'm still shocked though that halfway intelligent people can't understand this.

10:26 PM  

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