The election and the courts
(posted by Kay Gee)
By Kathy G.
One hugely important issue in this election that has received scant attention is the impact the next president could have on the courts. Just look at the Supreme Court. The justice who is now the swing vote on many cases, Anthony Kennedy, is 72. Among the four “liberals” (it would be more accurate to describe them as moderates), David Souter is 69, Stephen Breyer is 70, Ruth Bader Ginsburg is 75, and John Paul Stevens is 88. In contrast, three of the four most hard-line conservative justices are 60 or younger.
The next president will almost certainly be appointing at least one, and likely more, Supreme Court justices. Nominations of federal judges will also be extremely important. What would be the consequences of four more years of Republican judicial appointments?
One thing is all but certain: abortion rights will go by the wayside. Dealing with a Democratic Congress would force John McCain to compromise on many issues important to the base, but one area where he will certainly be able to deliver is judicial appointments. As the Palin pick resoundingly demonstrates, on social issues, McCain is captive to the Christian right, and his judicial appointments would surely be ardently anti-choice.
Right now, Roe v. Wade rests upon the slenderest of reeds: the continued good health of an 88-year old man. There’s a smug assumption in some quarters that, in the words of Scott Lemieux, “Roe’s popular support made its upholding inevitable, but this really isn’t the case.” He points out that “If Reagan had appointed Bork and Scalia in reverse order, for example, Roe would have been overturned.” And as Lemieux has also argued, even if Roe is not explicitly overturned, the Court could still decide cases in such a way that the right to abortion is essentially abolished.
In the event of a de jure or de facto overturning of Roe, it’s likely that abortion might be banned in some states, and remain legal in others. But there’s little reason to be sanguine about this. First of all, such a state of affairs would lead to abortion being illegal in many, perhaps most, states in the U.S. As Linda Hirshman has noted in an important and deeply disturbing article that appeared recently in the Washington Post, “four states . . . have trigger laws explicitly aimed at making abortion criminal upon Roe’ s demise, and seven others that have committed to acting to the extent that the court may allow.” Moreover, she notes that “the trigger laws are much harsher than the pre- Roe laws; Louisiana’s, for instance, would allow abortion only in case of a threat to the mother’s life or to a life-sustaining organ.”
But wait, it gets worse: Hirshman writes that “some states with criminal abortion laws will almost certainly also forbid their residents to cross state lines to obtain an an abortion,” and she persuasively argues that those laws would be upheld by the courts. How might such laws be enforced? Here’s how:
The Hope Clinic in Granite City, Ill., is just 10 minutes from the Missouri border. Police from the prohibiting state can just take the license plates of local vehicles at the abortion clinics across the state lines and arrest the women when they re-enter the state. Or a traffic stop can produce a search. Tips from pharmacy workers, disapproving parents or disappointed boyfriends can alert the police to arrest the pregnant woman for intent to seek an abortion out of state. The state law may allow interested parties to seek injunctions to stop her from leaving.
We may even be treated to chilling scenarios such as the following:
In the 1980s, when abortion was severely limited in then-West Germany, border guards sometimes required German women returning from foreign trips to undergo vaginal examinations to make sure that they hadn’t illegally terminated a pregnancy while they were abroad. According to news stories and other accounts, the guards would stop young women and ask them about drugs, then look for evidence of abortion, such as sanitary pads or nightgowns, in their cars, and eventually force them to undergo a medical examination — as West German law empowered them to do.
The consequences this election will have for women’s freedom could not be more dramatic. But women’s rights are not the only reason why we should care, passionately, about the courts. Recent decisions of the Supreme Court have curtailed our voting rights. Long-enshrined civil liberties such as habeas corpus are hanging on by a thread. And Nathan Newman has noted that in recent rulings by the Supreme Court, “in almost every case where corporations challenged state regulations or taxing powers this term, the corporations won and state power lost.”
Indeed, as Thomas Geoghegan has noted in his brilliant book, See You in Court: How the Right Made America a Lawsuit Nation, over the past several decades, there has been a silent, under-the-radar revolution in the courts that has seen them steadily embrace a pro-corporate, anti-regulation agenda. The increasingly conservative courts have overturned a host of economic protections Americans used to enjoy. And it’s not just Republican judges who support these doctrines, either — many Democrats have joined them. Steven Breyer, a Clinton appointee, has a decent record in many respects, but throughout his career he’s been an advocate of deregulation, and he rules with the conservatives on many economic issues.
Geoghegan discusses some of the most important legal turning points, such as a landmark 1978 case where the Supreme Court decided unanimously to severely curtail state laws that capped interest rates on credit cards. Other consumer protection laws have also been overturned or seriously weakened. Geoghegan observes that the ways pension law and trust law have been changed have fairly radically transferred economic power from individuals to corporations and institutions. “Charitable” institutions like hospitals and universities are no longer strictly held to the former legal standards requiring that they serve the public interest. Hospitals are allowed to do things like sue uninsured folks into bankruptcy for unpaid medical bills — and yet still preserve their tax-exempt status.
Michael Bérubé recently noted an extremely insightful observation that an acquaintance of his made. This person
pointed out that the right-wing culture war against pointy-headed intellectuals does not extend to the judiciary. On the contrary, he said, it’s as if they’re willing to run a cephalopod and a bag of hammers for the executive branch (I don’t think these were his exact words), but they actually recruit and train all their intellectual firepower for the courts (those were pretty much his exact words). And, of course, he’s right: Scalia, Alito, Roberts—these are all graduates from Pointyheaded Liberal Elite Law School, Evil Genius Division, and the glaring exception, Clarence Thomas, was a Palinesque conservative-affirmative-action fuck-you payback for the rejection of Elitist Evil Genius Robert Bork.
And the right-wing noise machine got the memo, too: witness the fact that everyone on the right, even down to bottom-feeding shriekers like Michelle Malkin, duly took up their torches and pitchforks when Bush nominated Harriet Miers. I was wrong, I realize now, to have called Palin Harriet Miers 2.0. Because Harriet Miers was ridden out of town on a rail, in a matter of days, by many of the same people who are now digging in, doubling down, and rooting hard for Palin against the mocking liberal elites. When it comes to the highest court in the land, these right-wing hacks don’t put up with no second- and third-stringers.
When it comes to the courts, the right does not play games — they know just how high the stakes are. I fervently wish the rest of America understood this as deeply as the wingnuts do. And I strongly believe that those of us on the left need to give considerable thought about how to best enable our side to appoint more honest-to-God liberals to the courts once again, and fewer Stephen Breyers.
(You can visit my personal blog, The G Spot, here).
October 5th, 2008 at 7:52 am
This overstates its case. Liberal and moderate jurists are no more respectful of individual liberty than conservatives. It was the liberals on the Court who voted against the right of states to allow medical marijuana. It was the liberals who voted to uphold the D.C. gun ban. Ginsberg cast the deciding vote in an important case upholding asset forfeiture laws where innocent owners are involved. Of course, this writer may be like the many other leftists who don’t care about any of these issues so long as abortion is legal and the welfare state is maintained.
As for me, I’d prefer to restore the Articles of Confederation, dismantle the Federal Reserve in favor of free banking and dissolve the plutocratic corporations into worker cooperatives.
October 5th, 2008 at 9:50 am
The cynic in me says that Roe vs. Wade will never be overturned because Republicans need it to run against. If it were overturned, the Republicans would have to reinstate it just so they could campaign against it.
October 5th, 2008 at 10:30 am
Thoreau,
That is exactly right. Even some of the more intelligent and perceptive social conservatives recognize that:
http://www.takimag.com/site/article/the_judicial_shakedown/
October 5th, 2008 at 11:05 am
it would be more accurate to describe them as moderates
Relative to what?
Clarence Thomas is actually my favorite because he takes originalism to places Scalia won’t. He’s lousy on the War on Terra though.
I thought Keith was going to point to Kelo rather than Heller.
October 5th, 2008 at 11:16 am
Yeah, Kelo is another illustration. Heller had the effect of a net increase in individual liberty, though at the expense of local sovereignty, so I guess I’d have a mixed view of it.
I remember Bob Tyrell of American Spectator once saying that liberals were only for liberty in the bedroom and the hoosegow, and even the latter is doubtful given the rise of Clintonism-Feinsteinism-Schumerism in the 90s.
October 5th, 2008 at 2:43 pm
This is more lesser-evilism bullshit. It completely ignores the fact that Barack Obama admits on his own website that he orginally wanted to vote for Roberts (implying it wasn’t his job to judge ideology but experience) but changed his mind when convinced of the effect it might have on future election ambitions.
I might even go so far as to say that this takes a page right out of the Bush playbook of extorting voters with fear to fall in line (once again) with the Democratic party. “No, no, this time they really will stand up for progressive causes.” Give me a break. Kathy all but admits that the Dems will be useless in this fight because it’s very much expected that they will retain control of Congress and could, if they really had guts, stand up to a poor nominee. But they won’t.
October 5th, 2008 at 7:46 pm
A McCain victory will result in women being forced to undergo pelvic exams when travelling from Chicago to St Louis? Really? For a blog called ‘the art of the possible….’
October 5th, 2008 at 11:32 pm
While there are plenty of good reasons to worry about which president is making judicial appointments, abortion is not one of them. If Roe were overturned tomorrow — and as the very red state of South Dakota recently demonstrated — returning abortion as an issue to the states would result in 4/5 of them legalizing it for most purposes, and with no1st trimester limits.
October 6th, 2008 at 7:01 am
“If Roe were overturned tomorrow — and as the very red state of South Dakota recently demonstrated — returning abortion as an issue to the states would result in 4/5 of them legalizing it for most purposes, and with no1st trimester limits.”
Exactly. A comprehensive ban on abortion couldn’t even pass a general referendum in South Dakota, one of the most conservative states in the country and one that only had one abortion clinic anyway. I live in Virginia, which is also very conservative and the headquarters of Jerry Falwell’s and Pat Robertson’s organizations, and Virginia elected the first black governor in the US back in 1989 largely because of his pro-choice views and the perceived anti-abortion extremism of his opponent.
Serious minded pro-lifers know they are not likely to win on this issue:
http://www.takimag.com/blogs/article/mccain_wont_end_abortion/
http://www.takimag.com/blogs/article/what_would_machiavelli_do1/
October 6th, 2008 at 8:58 am
Despite what Mona noted, I’m sure that some state somewhere would indeed ban abortion if Roe were overturned, at least for a while. As important as the issue is for the women of that state, is the decision-making process of the rest of the country really to be held hostage to that one issue in that one state?
Mind you, there are plenty of other reasons to not want McCain picking judges, but I am not about to use that one issue in that one (unidentified) state be the lens through which I view the Supreme Court.
October 6th, 2008 at 4:41 pm
Despite what Mona noted, I’m sure that some state somewhere would indeed ban abortion if Roe were overturned, at least for a while. As important as the issue is for the women of that state,
There is only one abortion clinic in SD. In the one or two states that might ban abortion if Roe were overturned, women in those states would generally have no more of a hurdle traveling out of state than many already do in SD.
Abortion has been the gift that keeps on giving to the GOP, rallying the base & etc. I consider making Roe some Holy Grail of liberty/progressive politics a huge error that has done nothing but give rise to religious right-base support for Republicans, which the latter have endlessly exploited to great benefit.
October 7th, 2008 at 7:24 am
“returning abortion as an issue to the states would result in 4/5 of them legalizing it for most purposes, and with no1st trimester limits.”
Really? Then how is it that 11 states *already* have trigger laws that will automatically kick in should Roe be overturned, and which will outlaw abortion in all cases except (in some states) rape, incest, or to protect the life of the mother?
11 out of 50 is a wee bit more than 1 out of 5, last time I checked. And that would be only the beginning.
But you’ve all demonstrated such deep and sincere knowledge and concern about the choice issue that you’ve totally convinced me! Silly me to worry my pretty little head about such trivial matters.
October 7th, 2008 at 10:24 am
Why do people assume it would be a state matter? We’ve already seen that the conservatives on the Supreme Court are quite happy to approve a federal abortion ban (the so-called partial birth abortion ban is federal, not state).
Since there already is a federal ban of one abortion procedure in place, why do you think that no future federal abortion bans are possible?
October 7th, 2008 at 10:31 pm
11 out of 50 is a wee bit more than 1 out of 5, last time I checked. And that would be only the beginning.
No, it is about 4 of 5; and when were some for those laws passed? I’d bet the family farm they would not stand now, not if South Dakota is any indication.
Barry: I’m not a conservative. Abortion should not be a federal matter, for or against. (And I’ve said so about the partial-birth abortion ban.)
More than two generations have grown up w/ abortion legal, and the state trend was heading that way before Roe. The vast majority of states are not going to criminalize most abortions. Period.
October 8th, 2008 at 3:17 am
Mona: The point is, abortion IS a federal matter, and one significant abortion ban has been passed at the federal level and given a stamp of approval by the Supremes.
So when you claim that overturning Roe is “returning abortion as an issue to the states,” that’s nonsense. State laws will be in play, but so will federal laws.
I guess if you have faith that conservatives will never, ever again hold the majority of Congress, you can feel sure that there will never be a Federal abortion ban. But I don’t think that’s something we can rely on.
October 8th, 2008 at 7:01 am
Well, on the bright side, if there is a federal ban on abortion maybe the liberals will finally stop looking to the federal government as Our Lord and Savior, and start thinking in more separatist or revolutionary terms.
October 8th, 2008 at 7:12 am
Keith,
I’m kind of uncomfortable to how close you are to rooting for something bad to happen because it would help your side. In fact, I’m kind of uncomfortable with this whole comment section and how cavalier people are about women’s reproductive rights.
And besides. If legal abortion doesn’t drive the right to “start thinking in more separatist or revolutionary terms”, why would a federal ban on abortions do the same for liberals.
October 8th, 2008 at 8:17 am
The irony content of this thread just increased exponentially.
I agree that Keith’s and other’s pragmatism on the subject is troubling. Repealing Wade without getting rid of the surrounding constellation of coercion involved (for starters, the requirements of getting a doctor’s prescription and having to buy through a RPh) can easily be seen as increasing the net amount of coercion in the system, even for someone, like myself, who doesn’t believe in the absolute right to an abortion on demand.
Pragmatism has its places, but only if the fundamental concepts of justice are already in place.
October 8th, 2008 at 10:27 am
Angelica,
“I’m kind of uncomfortable to how close you are to rooting for something bad to happen because it would help your side. In fact, I’m kind of uncomfortable with this whole comment section and how cavalier people are about women’s reproductive rights. ”
Well, if it’s any consolation, though I’m pro-Second Amendment, I was almost hoping the Heller case would uphold the D.C. gun ban so as to spark an insurrection from the gun nut crowd.
I’m “pro-choice”, though I disagree with some who seem to believe this issue ought to trump every other consideration.
“And besides. If legal abortion doesn’t drive the right to “start thinking in more separatist or revolutionary terms”, why would a federal ban on abortions do the same for liberals.”
Some on the Right are doing just that. Ever heard of the League of the South, Christian Exodus Project, Republic of Texas or the Michigan Militia? There are some on the Left with similar sentiments.
I dunno, maybe some “war on drugs”-style paramilitary police raids on “women’s health clinics” might spur some cop-loving but pro-choice soccer moms to rethink some of their positions.
Quasibill,
If it were up to me, there would be no federal government, period. So abortion would be a local or regional matter by default.
What I actually see happening in the future is the federal government, the ruling class and American society/culture continuing to move leftward culturally and socially and the right-wing finally giving up on “taking back America for the real Americans” and all that jazz.
http://vdare.com/
http://www.lewrockwell.com/engelhardt/engelhardt356.html
Also, many of the constituent groups of the Right will come under greater attack from the state as society continues to move leftward. So these sectors will have no choice but to develop a separatist, revolutionary outlook.
At the same time, the system, while becoming more culturally leftward (more minorities and women in positions of influence, gay marriage, etc.) will become more economically decrepit, bankrupt, militarily aggressive and domestically repressive in the police state sense. So those sectors of the Left that are about class-oriented politics, antiwar and civil liberties will need to become revolutionaries as well. Hence, a convergence of the far Left and far Right, which we’re already seeing with Ron Paul’s “unity of 3rd parties” movement and Kirk Sale’s pan-secession movement. There will be other projects of this type in the future.
The abortion issue itself aside, a repeal of Roe/Wade could work either way strategically. It would take away something to rally “traditional values”-types against. What reason would they then have to support the GOP? It might also turn the pro-fed Left away from their traditional emphasis on the central government as their Savior. However, it could also motivate both groups to struggle that much harder to control the federal government. To ban abortion on the federal level for the Right, to reinstate Roe/Wade for the Left.
I’d be surprised if even a Neocon-dominated Supreme Court would want to overturn Roe/Wade completely, as they might fear the alienation of the elite class, which is culturally more leftward than the proles, to the point where their allegiance to the state itself becomes questionable. I remember the Casey decision from 1992 included some language from the Court about how “we are very concerned about how the educated classes will view our decision” or some such malarkey.
Instead, I suspect the way it will work out in the long run is the liberal side will agree to give the neocons what they want in foreign policy, with the neocons conceding to the left on social matters like abortion, gay rights, affirmative action,etc., and both groups upholding the economic interests of the corporate ruling class. That’s pretty much how it is already.
October 8th, 2008 at 9:39 pm
On a purely humorous note, after the 2004 election one of the Democratic bloggers produced a map of North America with the blue states merged into a reality-based union with Canada, and the rump U.S renamed “Jesusland.”