July 28, 2007

Justice Stevens on "super stare decisis" and whether it's believable that Clarence Thomas did not talk about Roe v. Wade when he was a law student.

I'm watching C-Span's coverage of Justice Stevens at the Ninth Circuit Court of Appeals conference in Honolulu (from July 19, 2007). He's asked about the term "super stare decisis," which came up in the confirmation hearings for Chief Justice Roberts and Justice Alito.

Stevens says:
Well, I wasn't particularly persuaded by that suggestion. I think, after all -- he's talking about Roe against Wade there and so forth -- and I think there are powerful stare decisis arguments there, but it's also true that that has been a controversial decision in recent years.

Interestingly, though, it was decided just two or three years before I went on the Court, and at the time, I was not asked a single question about that issue, because it was not then controversial. That's quite interesting. It was a 7 to 2 decision, a sort of fairly routine decision at the time.

I remember during the confirmation hearings for Justice Thomas he was asked about his discussions in law school about that case, and he said he didn't remember having any, and that people thought, well, he's not being forthright. Well, he was being absolutely honest, because I remember, at that time, it was not something law students generally talked about. It was considered a fairly settled, noncontroversial matter.

It became more and more controversial as the years have gone on.
I don't like the way he strayed from the question. Why wasn't he persuaded by the "super stare decisis" idea? But -- I think at first -- it's nice to hear him back up Justice Thomas's credibility on an issue that he's been scoffed at for so many years.

And then I think: Was it really true that Roe v. Wade was not controversial at the time, that law students didn't talk about it when it came out? I remember -- as a young woman who worried a lot about pregnancy back then -- being floored when the Supreme Court came out and said I had a right to an abortion. It hadn't been that long ago that we'd had to think about traveling to Sweden if we needed an abortion, and the ability to go to New York for the procedure was quite new. Suddenly, it was not only not a crime anymore, it was a constitutional right. I experienced that as astounding.

But maybe if you were already initiated into the law -- I was a college student -- it would have seemed obvious and ordinary -- just another step down what was a predictable path. Stevens says so, and in saying so he backs up Thomas.

Ah! But see the cleverness of saying that now? Stevens seems to forget the question about super stare decisis, but did he forget? Or did he see a way to entrench Roe more securely than if he'd talked about the term super stare decisis? He shifted to talking Justice Thomas. He backed up his antagonist on the Court on an issue over which Thomas has suffered long and bitter attacks. But the way he found to support Thomas entailed the notion that Roe was a secure and clear articulation of the law in its time -- an easily perceived detail in the coherent fabric of the law.

Stevens leans back in his chair. He's an old man wearing a pink short-sleeved shirt, big outdated glasses, and a Hawaiian lei. Who can notice that he's just made a deft rhetorical move? Well played, Justice Stevens!

44 comments:

The Emperor said...

I was too young to be paying attention to these things in 1973, but it's hard to believe that this wasn't controversial at the time. What were people talking about if not this? Did law students and lawyers not question Court decisions back then? Today, people feel quite free to say that the most eminent jurists in the country are full of crap. Did they not back then?

deb said...

Stevens: English Literature
Elementary and preparatory schools: University of Chicago Laboratory School. Following his graduation from High School, he continued his studies at the University of Chicago, earning an A.B. in English Literature 1941, joining the Psi Upsilon fraternity and graduating Phi Beta Kappa. For law school, Stevens attended Northwestern University, graduating, magna cum laude, the first in class in 1947. He received the highest grades in the law school's history and distinguished himself by becoming editor in chief of the Illinois Law Review, a member of the Order of the Coif and a member of Phi Delta Phi.

Come on! He's a total academic lightweight. Has he had a single course in calculus, for example?

Simon said...

"Why wasn't he persuaded by the 'super stare decisis' idea?"

Perhaps because it is a particularly-silly custom-built attempt to salvage a single case, masquerading unconvincingly as a neutral principal of general applicability?

I share the skepticism that Roe was not controversial when decided - perhaps not as controversial as it has become, but uncontroversial? Doubtful. And in any event, even assuming that to be true, doesn't the fact that the decision is not only more controversial now than it was then (indeed, is ever more so) make a mockery of Casey's call to both sides to accept a common mandate rooted in the Constitution? What other single decision of the court has provoked a thirty year backlash of ever-intensifying heat and pressure?

Simon said...

^ That is, even if there were to be such a thing as "super stare decisis" wouldn't Roe be the last decision to qualify for its protection? A case plainly wrong as an original matter, which fosters no reliance interests, and is more (and ever more) controversial than it was when it was decided would surely be as completley unlike Miranda, for example, as it's possible to imagine.

The Emperor said...

he continued his studies at the University of Chicago, earning an A.B. in English Literature 1941

Now this might be part of the problem. Law used to be full of English majors. Great writers, but not very good thinkers. "Should we declare a constitutional right to an abortion? Sure, why not, all my fellow English majors support that." Thankfully we now have some economists going to law school.

B said...

It is now well known that Justice Brennan, when writing Roe, did not believe that it would be as far reaching in giving unimpeded abortion rights as it turned out to be. Justice Brennan, and most of the Court - Chief Justice Burger vocally included - rejected the notion that they had found or created a right to "abortion on demand". The Los Angeles Times had a series on those facts about 2 years ago.

The national pro-life/pro-choice arguments over Roe really gained momentum when what became today's main stream evangelical movement began forming out of the early 70's "Jesus movement". As the Carter Presidency turned out to be a disaster for conservative evangelicals, they began focusing on the need to be "good citizens"; one way to being a good citizen was register and vote according to scriptural principals.

A common line in messages given by evangelical pastors in the late 70's was

"while the Church was asleep, the Court legalized the killing of unborn children. The Church cannot remain asleep any longer." (That is an exact quote from a 1979 message I have in my library.)

With the coming of Reagan and his appeal to evangelicals, it became even more clear that it was okay for evangelicals to become active in politics.

It took a decade after Roe came to down to really get rolling with the Pro-life groups and their allies in the growing percentage of America's population that was moving into the evangelical church.

Paul Zrimsek said...

And then I think: Was it really true that Roe v. Wade was not controversial at the time, that law students didn't talk about it when it came out?

Isn't this just the lawyer's equivalent of Pauline Kael's (supposed) "No one I know voted for Nixon"?

Tex the Pontificator said...

I enrolled in the University of Texas School of Law in 1973, and I remember discussing Roe v. Wade. I specifically remember concluding that the trimester distinctions were pure judicial legislation.

Simon said...

B - Justice Brennan didn't write Roe, Justice Blackmun did. And while Justice Blackmun and Warren Buger might not have thought Roe stood for abortion on demand, I suspect Justice Brennan did, and in any event, that is ultimately what it's come to stand for, for right or wrong. Decisions - like laws (or indeed, constitutions and their amendments) often enunciate a reasoning that their authors don't fully understand. The Framers of the 14th Amendment, for example, certainly didn't understand what they ad done, and may we all be tahnkful for that, because if they had, they might not have done it!

reader_iam said...

Not controversial at the time? Wow! That's not how I remember it (nor what my little journals of the time reflect), nor how my parents remember it, or friends with whom I have discussed this, including some with whom I was friends at the time or with whom I became friends relatively shortly thereafter.

It is true, however, as Althouse notes, that neither I nor my parents were or are lawyers, and while a couple-so of the friends in question are now lawyers, they weren't at the time. So ... .

amba said...

He's a bridge player, Justice Stevens, as was his late brother Jim, my father's close friend and longtime bridge partner. My dad has played with Justice Stevens at least once, maybe a few times.

I don't play or understand bridge but it's clearly not a bunch of old fuddy-duddies sitting around a card table. It's a game of deep and wily strategy and of bluffing. My father is 89 and it is clearly one of the things that has kept his brain exceedingly sharp.

JimM47 said...

Simon says: ...constitutions and their amendments often enunciate a reasoning that their authors don't fully understand. The Framers of the 14th Amendment, for example, certainly didn't understand what they had done, and may we all be thankful for that, because if they had, they might not have done it!

Amen to that.

deb says: He's a total academic lightweight. Has he had a single course in calculus, for example?

1. How does not taking Calc make you a lightweight? 2. Why assume that just because someone majors in the humanities that they haven't taken Calc? I majored in humanities and I took Calc III.

Cedarford said...

Stevens is just enjoying a little game with Thomas, because he knows damn well Thomas had to dissemble.

As a deep South black Catholic, it's highly unlikely the matter was not discussed with black relatives where the prevailing opinion in SC Sea Island folk was it would lead to rampant black promiscuity and a collapse of marriage as men just walked away and said "abort of let welfare pay for it, not my responsibility to marry you, anymore". And discussed with THomas's Catholic crowd, and of course at Yale.

But no one could find a paper trail, and his sponsors said Kennedy and Tribe and other sleazeballs were just looking to a reason to slime and Bork him - and there is a difference between stepping up to a published opinion and a personal opinion expressed 20 years ago to Aunt Belinda..

Later, of course, the Borkers lined up and licked the ACLU shoes of Ruth Bader Ginsberg for HER excuse not to give Judiciary and ammo - her claim that because nearly anything might come up before the Court, it was inappropriate to express her personal opinion on nearly anything.
It was a bad strategic decision for the Borkers because they looked like fools when they tried to get the public to ignore the Borkings, the complete pass on the "Ginsberg excuse" used by her and Breyer, and Kennedy and Tribes bumbling mean-spirited attempts along with smarmy Schumer and Leahy - to resurrect Borking tactics with Roberts and Alito.

But Thomas would not have been granted the Ginsberg pass on her opinions on any controversial matter just 4 years after Lefties got Bork's head on their mantlepiece.

And when they and their attack research team failed to uncover "damning" writings of Thomas on abortion or other liberal sacred cows, they dredged up Anita Hill and went with that smear campaign.

Thomas would have lost his vote with Dems in control and feminists in full self-righteous indignation. (7 years before they exploded any credibility that had and fell on their sword defending Clinton's groping, sex with subordinates, lying under oath about intern sex like good little Stalinists sacrificing for the greater good should..)

But then Thomas did something that scared the living sh*t out of every white Democratic Senator below the Mason-Dixon line - he pulled out a huge race card and threw it at them - saying he'd label them lynchers of a Southern black who had solid, hard-working, law-abiding traditional values greatly admired by most Southern blacks and Souther whites.

As far as I'm concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the US Senate rather than hung from a tree.

After that, it was over. All the Southern whites caved and abandoned Ted Kennedy.

I see it as some last minute needling by Stevens. He knows Roe and his/Kennedys/ and the vapid, confused O'Connor's "2nd wind" Casey decision is on borrowed time - and Roe is already considered a bad constitutional mistake and activist overreach that has divided America for 35 years that would have been accepted and resolved long ago if it had been allowed to be democratically resolved by States.

Hopefully he and Ginsberg are gone soon.

reader_iam said...

I'm could swear I've written about the following somewhere on line, and I would have thought it was here, in comments.

The first time I ever "lost" a friend over a political argument was back in middle school, when we were assigned to debate abortion in connection with current events (recall that I am of 1961 vintage). I was assigned to the pro side, a friend the con. I still remember the long conversation afterward during which it was clear that nothing would be the same, based on that debate. I was more naive than she, in fact more stupid: mostly, I viewed it just as an assignment. She did not.

Still remember her name, still think about her from time to time. And as dumb as it seems, after all these years, it still bothers me how it all played out, even though, of course, it's all more understandable now than it was then.

Trumpit said...

"...Kennedy and Tribe and other sleazeballs..."

And you are not a sleazball, Cedarford? You've proved that you are by every twisted thing you wrote. As Ann has been known to say: PATHETIC!

Rod said...

I was in my first year of law school in the spring of '73. Abortion was a controversial issue. In the immediately preceding years, there had been ballot questions over liberalizing abortion laws in several states, mostly failing, and you could go some places, like New York, to get a legal abortion.
The decision came as a bit of a surprise, but not a shock from a court that had been slowly recognizing a Constitutional right to privacy on reproductive matters. The reaction took time to build. Women law students were more aware because they saw abortion as a feminist issue, but a year later, in 1974, most practicing lawyers could probably not have named the case which legalized abortion. However, the reaction was already taking shape by the time Planned Parenthood v. Danforth was decided in '76.

B said...

Simon -

I stand decidedly corrected. It was certainly Blackmun who wrote Roe. I had just finished reading an obituary of Brennan earlier in the day and had him still on my mind.

Apart from that mistake, I stand by the rest of my posted comment. As someone who was in the early parts of questioning his own political liberalism in 1973 - leading to my presently more conservative views - Roe was hardly on my radar, and it took several years before the majority of my friends, even in college, brought the issue up regularly.

hdhouse said...

Trumpit...I agree. Cedarford, long known for writing while drunk really crossed the racist line with that little diatribe. ...he who has nothing to contribut and contributes all of nothing...

Roe was a very big issue when decided. If you remember Woodward's book "The Brethern" there is a lot in there about Roe, its internal and external plot lines, and the dedication to thought that went into the opinion.

rcocean said...

Thomas with his "high-tech" lynching remark became one of my heroes and remains one till today.

The Thomas confirmation hearing was a 3-ring circus, presided over by Ted "the swimmer" Kennedy with his phoney moralism, and Biden with his loud mouth and small brain.

Had the internet existed in 1991, the Hill-Thomas confrontation would have ended much sooner. The lie spread by the MSM that Hill was a "Reagan Republican" would have been exposed and her true political leaning reveled. Once, it became clear the charges were politically motivated, and not made by an innocent victim, it would have ground to halt.

No doubt Althouse supported Hill in 1991; but to me anita Hill is one of the most dishonest, backstabbing creeps in public life.

Emy L. Nosti said...

superstarefragilisticexpialidecisis?

Well, it was sort of 7-2.
Nonetheless, for 13 months while the issue raged in the presidential campaign and countless women suffered personal tragedy, the court remained silent. Why? The emotional contretemps that went on behind the scenes did not long remain a secret from knowledgeable court watchers. The dispute soon surfaced in the press.

From the historical literature I went through about a year and a half ago, I never got the impression it was uncontroversial either socially or legally. Words like "stunned," "shocked," and "horrified" frequently came up (I believe the main NYT headline was about Lyndon Johnson's death, however), and while it seemed people weren't surprised by who won the case, they were surprised at the extent of the “bold and uncompromising” decision that almost completely deregulated and decriminalized abortion overnight. Yet, from my unabashed armchair analysis, the broad language in Griswold v. Connecticut and Eisenstadt v. Baird legally and intellectually put abortion on the same continuum as birth control and made Roe probable, if not inevitable.

Cedarford said...

hdhouse said...
Trumpit...I agree. Cedarford, long known for writing while drunk really crossed the racist line with that little diatribe. ...


As if a Lefty like hdhouse, who is a registered sex offender over a boy he swears was not underaged, really matters...

rcocean said...
Thomas with his "high-tech" lynching remark became one of my heroes and remains one till today.


The opinion of blacks in the military at the time was that Thomas was a righteous dude who was taking a mudbath because he was a black who didn't salute Brother Jesse and his Masters, but did his own thinking. When he finally had enough and came back with "high tech lynching" and caused 10 Southern white democrats like Hollings to cave within days - there were a lot of very pleased people I knew - black and white.

rcocean -The Thomas confirmation hearing was a 3-ring circus, presided over by Ted "the swimmer" Kennedy with his phoney moralism, and Biden with his loud mouth and small brain.

Larry Tribe was the originator of the Borking strategy.

By the time of Roberts, Biden had fairy well wrecked himself as a preening narcissist who couldn't keep his mouth shut, but couldn't seem to ask a coherent question in the process of bloviating.

By the time of Alito, Teddy's faux moralism was well past wearing thin, and he stepped on a big landmine when he focused on "the horror of Alito pretending to represent all Americans when he - in fact - once belonged to a men's only organization at Princeton! Thanks to the Internet, the media and Senate soon got news Old Teddy was not just a member of an all-male social and drinking establishment at Harvard - The swank "Owl Club" - but had kept his membership up and was a frequent attendee from when he was reinstated after being caught cheating on exams (a rarity at Harvard) - to 2005. "Ahhhhh, Mr, Chairman, I am err...not here to do anything but focus on Mr Alito as properly representing the needs and feelngs of women and minorities....and my membership is not a ...it was the 50s at Harvard and loyalty...ahhhhhh ...that was just stated as a minor background item on Mr. Alito." (Teddy resigned from the Owl Club the next day, but the Boston Herald in fall of 2006 says he's still a regular at the "male oppressor" haven of the Owl Club as a guest of other members.

rcocean - No doubt Althouse supported Hill in 1991; but to me anita Hill is one of the most dishonest, backstabbing creeps in public life.

Pretty much. The Senate Dem staff had found her a willing tool in another matter and her liberal change in direction had affected her ambitions for new appointments under GH Bush. So she was willing to lie about harassment, willing to lie about her being a "loyal Reagan worker, and lie about her "shock and betrayal and devestating anguish about a man she trusted".
For the records showed she made 7-8 phone calls to Thomas after the "horrors of harassment and pubic hairs on a Coke can" seeking favors or congratulating her "mentor" on his birthday and marriage. Her resume continued to list Thomas as a reference 2 months before his hearings.

After she went off to a Democratic sponsored academic sinecure for her efforts trying to "get Thomas" of course she emerged as a raging feminist, black "victimized" prof of Lefty race, gender, and class politics as applied to law.

Simon said...

I'd be interested in the answer to RCOcean's question about what Ann's view on Thomas was at the time of the hearings. I'm sure it's been addressed, but I can't find it.

Emy L. Nosti said...
"[F]rom my unabashed armchair analysis, the broad language in Griswold v. Connecticut and Eisenstadt v. Baird legally and intellectually put abortion on the same continuum as birth control and made Roe probable, if not inevitable."

Well, the Roe court certainly wanted people to think so. But as you say, Griswold is so broad and vague that you could point to it for practically any result. Even if you take Griswold seriously, though, and assume it stands for the proposition that there is a "right to privacy" in the Constitution, I would still argue that such a right wouldn't encompass a right to an abortion, and thus wouldn't demand the result in Roe.

Ann Althouse said...

I just looked to see if I'd ever mentioned Hill in my (nonblog) writing. I found one thing:

"The Lying Woman/Innocent Man stereotype haunted the recent hearings on the confirmation of Clarence Thomas to the Supreme Court. Supporters of Judge (now Justice) Thomas generated a stream of innuendo that encouraged their constituents to visualize Anita Hill through the overlay of the Lying Woman stereotype. Clarence Thomas presented himself as the outraged victim of injustice, the Innocent Man, and left it for the senators to imagine themselves endangered by the power that women could wield if only they were believed, power the Lying Woman stereotype safely constrains."

This was in an article about rape and the rules of evidence, which I will have linkable on line ... soon...

hdhouse said...

Cedarford said...
hdhouse said...
Trumpit...I agree. Cedarford, long known for writing while drunk really crossed the racist line with that little diatribe. ...

As if a Lefty like hdhouse, who is a registered sex offender over a boy he swears was not underaged, really matters..."

Hey chickenshit. I think you crossed the line into an actionable statement. if you care to remain anonymous or have the guts to come out and face the music I suggest you do. Free speech has limits and you crossed them.

Gahrie said...

hdhouse:

Hey chickenshit. I think you crossed the line into an actionable statement. if you care to remain anonymous or have the guts to come out and face the music I suggest you do. Free speech has limits and you crossed them.


That has got to be the most hypocritical, unself-concious thing I have ever read on the internet.

You have a regular habit of making vile ad hominen attacks against others, and you have the gall to write that!

Simply incredible.

Fen said...

hdhouse: Hey chickenshit. I think you crossed the line into an actionable statement. if you care to remain anonymous or have the guts to come out and face the music I suggest you do. Free speech has limits and you crossed them.

LMAO! Gahrie is spot on. How can you complain about Cedarford's ad hom after implying he's a racist? What a hypocrite.

cedarford: For the records showed she made 7-8 phone calls to Thomas after the "horrors of harassment and pubic hairs on a Coke can" seeking favors or congratulating her "mentor" on his birthday and marriage. Her resume continued to list Thomas as a reference 2 months before his hearings.

Your other criticisms of Hill may be valid, but I did learn from all the Clinton sexual harassment follies:

1) Women don't usually want to punish innapropriate behavior, they simply want it to stop.

2) Likewise, they don't usually cut off social or vocational interaction witht the perp. They are more likely to carry on as if the incidents never happened.

Emy L. Nosti said...

Simon, perhaps, but this was my analysis at the time (rough and only a small part, can't find final):
Eisenstadt’s main consequence was to provide case law that extended the implied right to privacy to unmarried adults. The Justices determined that providing it only to married couples was not providing “equal protection of the laws,” as the Fourteenth Amendment stipulates. While the Burger Court viewed Griswold as recognizing privacy concerning marital relations, they noted that Eisenstadt specifically granted the right to privacy to those seeking and using contraception.

Justice Potter Stewart’s concurring opinion in Roe illustrates a very concrete connection between the influences of new birth control policies on abortion. It even appears that in his mind, the Eisenstadt decision had already settled Roe’s outcome. Eisenstadt had recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Justice Stewart then wrote in Roe that this “right necessarily [included] the right of a woman to decide whether or not to terminate her pregnancy." Furthermore, he viewed criminal abortion laws as “a broad abridgement of personal liberty.” Just as the morning-after pill blurred the line between abortion and birth control, in this opinion Justice Stewart placed the two methods on the same legal continuum of family planning.

Justice Harry Blackmun, who wrote the majority opinion for Roe, also explicitly articulated this connection between the cases. In oral arguments, Sarah Weddington reminded the Justices that during Eisenstadt, the Court said that, "If the right of privacy is to mean anything, it is the right of the individual, whether married or single, to make determinations for themselves." Blackmun then replied that it logically followed that a woman should be allowed to ask her doctor to perform an abortion and end the pregnancy. Here, one can see that Blackburn viewed abortion as an agent of self-determination much like birth control, but did not think a fetus had a right to similar consideration in such decisions. Finally, Justice Arthur Goldberg drew an implicit connection. Opining on the moral basis of the Massachusetts law in Eisenstadt, he deemed that forcing a woman to give birth as some sort of penalty for sexual relations outside of marriage was unmistakably a “cruel and unusual punishment.” Just like the previous language on the right to decide whether to bear or beget a child, this language was so broad that the right to abortion easily and maybe even necessarily followed the right to contraception.

Simon said...

Emy, like much of Justice Blackmun's work, it seems conclusory to simply decalre that "[i]f the right of privacy ... [means] the right of the individual, whether married or single, to make determinations for themselves ... [then] it logically follow[s] that a woman should be allowed to ask her doctor to perform an abortion and end the pregnancy." That position is not only incoherent on its own terms (it's a non sequitur), but the proposition was expressly discused in Griswold at oral argument: the court specifically asked counsel whether his "argument concerning these things you've been talking about relating to privacy, invalidate all laws that punish people for bringing about abortions?" And counsel said that "No, I think it would not cover the abortion laws Or the sterilization laws, Your Honor[,] [because] [t]hose -- that conduct does not occur in the privacy of the home." Griswold, Tr. of Oral Arg. at 23.

If you find the balance of your analysis, drop me an email, I'd be interested to read it. :)

hdhouse said...

Cedarford is a chickenshit. I'm calling you out.

Fen said...

hdhouse: Cedarford is a chickenshit. I'm calling you out.

Too funny.

Fen said...

Simon, I'm still confused on the role of "super duper stare decisis" as I saw during the Roberts confirmation hearings. Congressional Democrats seemed to be arguing that precendent carries more weight than constitutionality?

If you have the inclination, I'd be interested in a layman's explanation that defends both povs.

Ann too.

Simon said...

Fen,
I think that to take it serious (arguendo) Specter's idea is that certain precedents are so important, so deeply entrentched in the law that they should be immune to review. You might think of Marbury as being one example, and even Justice Scalia sounded that theme in his confirmation hearings (he said, and I love this quote, that "on some level, even at the supreme court, government is a practical enterprise, and when some things are done, they're done and you move on"). And to some extent, I share the belief in interstitial common-law: the idea that some matters which the constiution doesn't decide have been so totally settled by tradition that the question is no longer open. Prayers at the opening of Congress, for example, or the existence of the Chief Justice as a discrete office rather than simply the most senior Justice.

The difficulty with this is that it's hard to see what principled analysis can say which cases ought to merit this extraordinary level of protection. And the reason for that, of course, is that Roe distorts the debate about stare decisis; "[o]ne of the worst aspects of the Supreme Court's ongoing meddling in areas it shouldn't on behalf of liberal causes has been the corruption of the debate on stare decisis, which is now used purely as a cipher for talking about Roe and its progeny. [Nevertheless,] Stare decisis is a conservative doctrine that promotes stability in and compliance with the law." The point is that stare decisis is very Burkeian. Conservatives ought to approve, generally. But no one belives that it's absolute.

Ultimately, I don't think you can or should take "super stare decisis" seriously - it isn't designed to be. It's just a buzzword that attempts to salvage Roe by suggesting it is deserving of more protection than other decisions because Specter supports abortion rights. That's really all there is to it. But y'know, it's really quite thin gruel. I don't think Roe is entitled to huge weight under regular stare decisis, let alone some novel heightened form.

I had a discussion about Marbury once with JAC and he called my interpretation "novel," which is the kiss of death for an originalist, and I think the same is true here - Specter's idea is truly novel, and it begs not to be taken seriously as applied to Roe, even if arguably some cases are deserving of heightened protection.

Emy L. Nosti said...

Simon:
I either didn't read or don't remember the oral arguments of Griswold, but at first glance it appears to me that Eisenstadt redefined Griswold. I won't comment on the correctness of the Court's interpretation of Griswold, for several reasons, not the least of which is that I'm underqualified. (Please apply this disclaimer to all of my comments on legal matters!)

Anyway, perhaps it sounds like a non sequitur due to omission. More representative:
MRS. WEDDINGTON: ...in the Baird versus Eisenstadt case this Court said, "If the right of privacy is to mean anything, it is the right of the individual, whether married or single, to make determinations for themselves..."

JUSTICE BLACKMUN: Well, doesn't it follow from that, then, that a woman can come into a doctor's office and say, "I want an abortion"?


She was referring to the majority opinion of Eisenstadt:
If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

On the other hand, if Griswold is no bar to a prohibition on the distribution of contraceptives, the State could not, consistently with the Equal Protection Clause, outlaw distribution to unmarried but not to married persons. In each case the evil, as perceived by the State, would be identical, and the underinclusion would be invidious... We hold that by providing dissimilar treatment for married and unmarried persons who are similarly situated, Massachusetts General Laws Ann., violate the Equal Protection Clause.

It doesn't seem that they are mistakenly saying that privacy=freedom, but that one of the main purposes and effects (in other words, its 'meaning'/relevance) of the "right to privacy" is the government’s noninterference in fundamental life decisions. These particular decisions are so influential in a person’s life and so tied to our conception of unalienable rights (in this case, liberty/pursuit of happiness) that they are “private matters,” in the sense that governmental intrusion would be a massive violation of the integrity of the self and one’s “god-given”—not government-given—rights.

Perhaps what’s stickiest is their use of the word “intrusion.” It can be used to imply either a violation of one's privacy OR active interference with a person's decision-making. Their use may conflate the two...thus leading to the appearance of a non sequitur (indeed, the arguments themselves may improperly conflate the two, but I know little more about the “right to privacy” than what’s contained in these cases). Merely saying that it does not follow and then writing it off is an oversimplification.
--
Regardless, I think everything boils down to the rights of a fetus and the First Amendment. The more basic human rights a fetus has, the more a couple’s ancillary rights become irrelevant. But I think the question of a fetus’ rights often presupposes certain religious beliefs.

To illustrate, I don’t believe in a “soul” as most religious people see it. I don't think that something with few nerves to feel with and no brain (or a mostly nonfunctional brain) to think with (or process feelings) is as worthy or as much of a person as an infant or a mostly developed 8-month-old fetus. Without going too much into my beliefs, I do believe that evil has a lot to do with suffering, and that a few cells are incapable of suffering (at least as we understand it). A 14-year-old girl, on the other hand, is quite capable. I do think that her suffering outweighs alleged “potential,” which I deem to be a rather abstract and probabilistic concept, perhaps even a meaningless one.

Point is, aside from potential, zygotes are somewhat akin to my individual skin cells; my skin cells are nothing without my brain and I have the authority to make decisions for them while they’re attached to me. The only thing that would objectively differentiate them is a soul, which, depending on your definition, is a purely spiritual concept. I’m willing to hear arguments against abortion when a fetus, as determined by scientific means, is capable of suffering…but until that point restricting abortion appears to be “respecting an establishment of religion.” (Heck, maybe even drawing the line at suffering is as well, considering the medical ability to minimize suffering...maybe the line should be at executive function, understanding, or other aspects of personhood.)
--
Re analysis: it concerned how birth control/the morning-after pill influenced both social and legal perceptions of abortion...what's there is probably the bulk of the legal part, but if you're still interested, I'll take a look.

Roger said...

Ohh boy--House calls out Cedarford--showdown at high noon. As vile and fact free as your comments are, house, you really ought to be careful--Cedarford might take you up on and you will let your elephant mouth overweight your hummingbird ass.

Typical bully--can dish it out, but cant take it. What a hyporitical moron.

amba said...

superstarefragilisticexpialidecisis?

You go, Emy.

Simon said...

Emy -
This is kind of rushed and fragmented, but alas I'm pushed for time this morning. Still: Three things in reply.

First, I think it's still a non sequitur in context. From the predicate of the actual caselaw (viz. that "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child," Eisenstadt, 405 U.S. at 453), the answer to Justice Blackmun's question ("doesn't it follow from that [premise], then, that a woman can come into a doctor's office and say, 'I want an abortion'?") is "no" for at least three reasons. First, abortion postdates that decision, insofar as the decision is made at the point of conception. Second, and relatedly, the caselaw predating Roe spoke to contraception; even assuming Griswold and Eisenstadt legitimately announced a constitutional right to privacy, and fashioned of it a bar to government restraints on contraception, that still doesn't get you to Roe, and couldn't conceivably do so without the huge leap that abortion ≈ contraception. And third, even on its own terms, that formulation prohibits only "unwarranted" governmental intrusion, but regulations on abortion can scarcely be called "unwarranted": "The obvious corollary to Burke's aphorism that '[w]hatever each man can separately do, without trespassing upon others, he has a right to do for himself' is that no [one] has a right to undertake actions which 'trespass[] upon others,' and actions that so do are legitimate subjects of regulation by the polity."

(Of course, Weddington seems to distort the caselaw; if it actually did hold anything as broad as what Weddington says (that "the right of privacy ... [means] the right of the individual ... to make determinations for themselves") it would be precisely the "right to be left alone" that, as Bork pointed out, would invalidate all government regulation of everything, and probably the enterprise of government itself.)

Second, in any event, I don't agree with the Court's "fundamental rights" substantive due process jurisprudence. Like Justice Black, I think that the Fourteenth Amendment incorporates the Bill of Rights against the states, all of it, but "only" (as if that were nothing!) the Bill of Rights. Thus, like Justice Black, I would say that it doesn't really matter what (if anything) the "right to privacy" means, since it isn't protected by the Constitution. If Eisenstadt and Griswold demanded Roe (which I don't think they do), the court should have overruled those cases.

And third, I don't think beliefs on abortion presuppose religious views, or must necessarily be grounded on religious views. Certainly mine aren't - I'm an agnostic. At least in the abstract, "[t]he issue of abortion is conceptually simple.... [W]e can't know when life begins, and there is no functional difference between killing a baby carried to term before delivery and killing it after delivery. ... So at some point during gestation, a collection of cells becomes a living human child; since we cannot know when that is, we must err on the side of caution and assume that after the physical prerequisites are met -- a heartbeat and brain activity -- abortion is never justifiable except if continuing the pregnancy poses clear and certain harm to the mother...."

Roger Sweeny said...

Emily L. Nosti,

I don't see what suffering has to do with whether you are terminating life or just potential.

If I gently smother someone in their sleep, they don't suffer. If I pump her room full of carbon monoxide, she will in fact feel kind of euphoric, the opposite of suffering.

Why would an 8 month, 29 day abortion done without suffering be right while the same done with suffering would be wrong?

Roger Sweeny said...

I was a second year law student when Roe came out and it definitely was controversial.

Most of my professors loved the result (it was a very results-orientated school) and hated the craftmanship. Why couldn't our St. Paul, Justice Brennan, have written it?

John Kindley said...

hdhouse: Hey chickenshit. I think you crossed the line into an actionable statement. if you care to remain anonymous or have the guts to come out and face the music I suggest you do. Free speech has limits and you crossed them.

Gahrie: That has got to be the most hypocritical, unself-concious thing I have ever read on the internet. You have a regular habit of making vile ad hominen attacks against others, and you have the gall to write that! Simply incredible.

Apart from the question of who provoked who and whether hdhouse or Cedarford have a habit of making vile ad hominem attack, after reading Cedarford's original post I did have the impression that perhaps hdhouse might have said at some point something to the effect that he is a "registered sex offender over a boy he swears was not underaged." Which raises an interesting question: would a pseudonymous blog commenter persona like "hdhouse" even have standing to sue for allegedly libellous statements about that pseudonymous persona?

Emy L. Nosti said...

Roger, please read more carefully.
1. It's not Emily, and for good reason.
2. Obviously, her family and friends will suffer (most blastocysts have not/could not engender this level of attachment--and obviously those on the chopping block did not). But mostly, there is much I have not articulated concerning such matters, which is precisely why I said suffering has much to do with evil, not suffering=evil (and I thought it was rather clear that I value actual people over potential people).
3. I said the exact opposite of what your last paragraph implies I said, and so did much of my argument.
--
D'oh, that should be "superstarefragilisticexpialdecisis."
--
Simon:
I had a hard time figuring out where you saw the non sequitur. I decided that you meant that saying the right to privacy means the right to make certain decisions didn't make sense (which is true in many respects), because I figured that oral arguments aren't as important (or, for many reasons, expected to be as logically consistent) as what was written into the opinions. Sorry for the misunderstanding. However, regarding "abortion ≈ contraception," in the full version I argued that that's how many people saw it...I'll email you when I find it and you can tell me what you think.

"[A] heartbeat and brain activity" sounds like a perfectly reasonable place to draw the line, though I think brain activity alone is more cogent (esp. considering life support/brain death). But those who say the morning-after pill is an abortifacient...it's hard for me to understand that except from a religious perspective. Neither do I see a person a week later, and considering that I'm not alone by a long shot, this is not some sort of fundamental and self-evident truth. It is most "rationally" defended through religion, and really, we all know that's why just about anyone is actually concerned about unthinking, unfeeling blobs to begin with. Even if you manage to scientifically rationalize it (which may be impossible to do while retaining consistency), it's founded on and fueled by religion.

Thus, like Justice Black, I would say that it doesn't really matter what (if anything) the "right to privacy" means, since it isn't protected by the Constitution.
The Ninth Amendment may (or may not) disagree; I tend to agree with Griswold in that "the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights." Jurisdiction is a different issue, but if it concerns fundamental rights it seems it should be fair game (it would be odd to differentiate fundamental rights that are enumerated from those that are not, given the Ninth [esp. "not be construed to...disparage"]). But I'm definitely pulling the layman card on this one.

Finally, I'll let you in on a little secret. I don't think the authors of the Constitution or its amendments were perfect, and frankly I don't give a d@mn what it says as long the government, for whatever reason--be it law, levy, or laziness--doesn't infringe on what I consider to be fundamental rights (the meaning of which we can debate all day, but I prefer to "err on the side of caution" and the individual). In my mind, the document, and all law for that matter, is a means to an end and not an end in and of itself. (Certainly nothing worthy of the blind obedience or near deification some people bestow on it! Regardless, guess I shouldn't become a lawyer...but maybe that's one reason why the profession gets a bad rap. Or maybe it's just phrases like "...the Court's 'fundamental rights' substantive due process jurisprudence...", heh ;)

Gahrie said...

the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights

The Framers didn't intend that the Bill of Rights would exist at all. The Bill of Rights was forced on them by the Anti-Federalists, people opposed to the Constitution.

The Bill of Rights has changed the fundamental nature of the Federal government from one of limited powers enumerated by the Constitution, to one of broad powers, limited by the Constitution.

Under the original model of the Federal government, there would have been no question that abortion was an issue to be decided by the states.

Roger Sweeny said...

Emy L. Nosti,

1. Sorry for getting your name wrong. Thanks for the correction.

2-3. You are absolutely right. I read your post poorly. I thought it said that abortion was morally problematical if the fetus suffers. Since zygotes can't suffer, then there is no reason to make it illegal at that stage.

What I think you are saying now is that abortion is morally problematical if the fetus can suffer. If not, then abortion is like scaping off skin cells.

However, I still don't see the relevance. Why does the "capability of suffering" determine whether a metabolism should continue? If a seven month fetus is terminated without its suffering (evn though it could suffer if the abortion was done a different way), why is that morally different from terminating a 3 month fetus that (we will assume) is incapable of suffering?

You still have the same utilitarian calculus, that the potential mother will suffer if the pregnancy is brought to term but the fetus will not suffer from having its metabolism terminated.

(I see in your post you say later that maybe it doesn't matter, that perhaps various other considerations should make the difference, so maybe I am unreasonable to ask. Though then there are analogous questions, like why should "executive function" or "understanding" or "other aspects of personhood" matter? I suppose my most basic question is, are there any dividing lines that are not religious, giving religion the broad definition of the '60s First Amendment conscientious objector cases?)

I also want to apologize for my tone. I was feeling stupidly smart-alecky, and treated you less well than you deserved.

Simon said...

Emy:
"I had a hard time figuring out where you saw the non sequitur. I decided that you meant that saying the right to privacy means the right to make certain decisions didn't make sense...."

I meant that the non sequitur is the jump from the right to privacy (even sharpened into a right to make decisions relating to contraception) to a right to abortion, which by no means follows. Abortion ≠ contraception.

"'[A] heartbeat and brain activity' sounds like a perfectly reasonable place to draw the line, though I think brain activity alone is more cogent (esp. considering life support/brain death)."

Oh, I agree, although I have some concerns about the difference between first brain activity and first detectable brain activity.

"But those who say the morning-after pill is an abortifacient...it's hard for me to understand that except from a religious perspective."

Right, I'm not in the "life begins at conception" camp. But I don't think it's necessary to start from a religious perspective to get there, either - the bottom line is that life begins somewhere between conception and viability, and to some extent, the line drawing is going to be arbitrary. I can completely understand someone deciding that my line is too risky and saying that potentiality occurs at conception rather than birth. Indeed, drawing the line at conception seems to raise more religious questions than it answers - it means you have to explain the high rate of miscarriage in early weeks while preserving the "God doesn't make mistakes" rubric. Not a position I'd like to argue. ;)

"Even if you manage to scientifically rationalize it (which may be impossible to do while retaining consistency), it's founded on and fueled by religion."

Everything ultimately boils down to an axiomatic moral judgment, religion being a subset thereof. There's no purely rational belief about non-empirical subjects.


"The Ninth Amendment may (or may not) disagree; I tend to agree with Griswold in that 'the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights.'"

Well, you're far from alone in thinking that the Ninth Amendment may be a repository of unenumerated rights that are enforcable by courts. Some very esteemed and erudite scholars and judges take that view (indeed, Justice Goldberg's Griswold concurrence made that argument, and the district court ruling in Roe rested on the Ninth Amendment). Nevertheless I disagree, and I think that reading is flawed. While it's certainly true that the point of the Ninth Amendment is to reaffirm that the first eight amendments are not an exhaustive list of the natural rights of man, it doesn't follow from that agreement that the Ninth Amendment gives judges free license to strike down legislation based on it.

In the spirit of comity, I set aside the remainder of your remarks on the Constitution.

Emy L. Nosti said...

Simon, very quickly (and without having time to review your links):
Well, you're far from alone in thinking that the Ninth Amendment may be a repository of un-enumerated rights that are enforceable by courts.
No, I don't think that. As I was reviewing some things so as not to sound like a total idiot last time, I had to agree with this:
"Professor Laurence Tribe shares this view: 'It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution." "...Scalia[:] '...the Constitution’s refusal to "deny or disparage" other rights is far removed from affirming any one of them...'"
(He goes on to say that it neither authorizes judges to determine what those might be.)

So that's why I say it may or may not apply. Still, perhaps the SC should have jurisdiction to make such determinations because of the Ninth (certainly they could have written that more clearly!). Somebody has to serve as a check and balance where fundamental rights are concerned...and to put the enumerated rights in a special class of protection and arbitration disparages other rights in several senses of the word.

--
Roger: No worries, I have much thicker skin than that (as you can probably tell from the my occasional attempts at self-deprecating humor).

Your question is rather involved and tangential to what I was saying...and I'm not inclined to write 10 pages on my reasoning right now. I will say that I think most people agree (at the very least, their biology and usually their non-volitional psychology agrees) that pain and suffering is generally not "good," and my personal conclusion is that needlessly causing it is usually "evil"...insofar as most people understand the term apart from what's in the Bible... So, one must draw the line at some place, but where? Again, leaving much unsaid, I personally conclude it should be drawn at suffering and/or awareness. (Skin cells have metabolism too, a rather elaborate one at that, and no one feels it is wrong to stop it. If they were capable of a subjectively unpleasant reaction to pain, then we could reevaluate things. But metabolism…hell, you could argue that an airplane has metabolism, or at least a catabolism.)

Also, abortion is not all selfishness on the mother’s part. Unwanted children, children whose mothers are too young or drugged to give them the time, attention, or mature influence they need, children passed off on the state—they suffer far more than children whose parents love and want them from the start. (That is not an unfounded claim.) This doesn’t apply to every case, nor does it justifies things, but it’s not as simple to say that a fetus “might” suffer—it certainly will suffer if born—consistently and to a greater extent.

Never mind that though. Is it wrong to terminate a 7 month old fetus if one can do it without pain? Maybe, maybe not (I said I was willing to hear arguments about this). Other aspects of personhood are relevant. If they are cognizant in some way (at 7mo I’m sure they are), you’ve definitely crossed another line. We just need to decide which line is relevant.

I don’t know about the 1st amendment case, but yes, I do think there are “dividing lines that are not religious.” Lines subject to scientific measurement now or in the future. You can’t measure a soul (even if someone claimed you could, there’d be little way to prove or disprove it). Let’s make moral judgments on concrete facts, not ethereal, alleged spirits. (To say this is impossible seems to presuppose that moral judgment derives from religion in some ways, something I emphatically reject.)

I guess from this I theorize that we need to develop a bare-bones moral determination of sorts based on evidence and not dogma and then try to apply that to the case (the Bill of Rights is sorely lacking; it is a mere list of rights with little regard to the reasoning behind them). If I recall (haven’t read the full text in 2 years), Roe did that in a way, drawing lines after a certain number of months where personhood became undeniable to just about everyone.
All this also explains my views on partial birth abortions. I don’t think it should be allowed except to protect the life of the mother (and I don’t think it usually happens except when this is the case, so I’m not sure what all the hubbub is about [oh right…political gamesmanship]—you don’t bear a child for 8 months and then just change your mind or lose the attachment). Why does the mother take precedence? Because not only will she suffer but so will everyone who loves her, especially if she has other children. Reality trumps potential yet again. (I prefer “pragmatism” to “utilitarian calculus,” by the way, and don’t see what’s wrong with it as long as you consider not just the overall results but also the effects of intermediate steps. Mere good intentions pave the road to hell, after all.)

Ugh, as you can see, this is far more complicated than I have time to get in to. I’m trying to both speak from my own concept of morality as well as from concepts that are readily apparent to those who have not followed my course of thought in their own moral development, and I feel I haven’t succeeded. Sorry; seems like a scattered mess with apparent contradictions that can only be resolved with much more explanation. Maybe it would be worthwhile to write an essay (book?) so that I can insert it any time there’s this sort of question, but for now, I’ll stop blathering!