Couric: Why, in your view, is Roe v. Wade a bad decision?The question was why is Roe v. Wade a bad decision, and as a law professor, I would like to hear an answer about how the decision was badly reasoned, how the Supreme Court had to redo its own work (in Planned Parenthood v. Casey), and so forth, but Palin jumped right to the political effect of the decision and the usual notions about the benefits of federalism.
Sarah Palin: I think it should be a states' issue not a federal government-mandated, mandating yes or no on such an important issue. I'm, in that sense, a federalist, where I believe that states should have more say in the laws of their lands and individual areas. Now, foundationally, also, though, it's no secret that I'm pro-life that I believe in a culture of life is very important for this country. Personally that's what I would like to see, um, further embraced by America.
(Note: Without Roe, Congress would have the opportunity and the incentive to pass laws either limiting, banning, or preserving abortion, so the matter would only be left to the states if Congress exercised restraint or if the Supreme Court managed to limit the commerce power.)
Couric: Do you think there's an inherent right to privacy in the Constitution?Couric tries to focus Palin on constitutional law. She is also inviting Palin to reject an important category of constitutional rights.
Palin: I do. Yeah, I do.Palin avoids stepping into a pit there.
Couric: The cornerstone of Roe v. Wade.Couric seems to suggest that if you believe the Constitution protects the right of privacy, you will need to accept every right that is argued to be an example of that right. That is entirely incorrect. (For example, the Supreme Court unanimously rejected the right to physician-assisted suicide, despite the argument that it fit the right to privacy.)
Palin: I do. And I believe that individual states can best handle what the people within the different constituencies in the 50 states would like to see their will ushered in an issue like that.Now, that's an example of Palin's garbled syntax. She's also repeating herself and being verbose, but the message I get is that Palin is not going to do any legal analysis, and she's going to stick to the basic Roe v. Wade talking point that abortion should be handled at the state level.
Couric: What other Supreme Court decisions do you disagree with?This is a clunky question, and it sends up an obvious red flag after the last question. Couric wants to pull Palin into a discussion of constitutional law. Couric let it show that she wants to expose areas of ignorance. Couric would have earned my respect if she had chosen instead to pursue the question of why a right of privacy matters -- why does Palin support it? -- and what makes abortion different. Imagine a serious discussion about that. Instead, I sense that Couric is hungry for mistakes, and Palin's shaky response reveals that she knows she's in danger of making mistakes:
Palin: Well, let's see. There's, of course in the great history of America there have been rulings, that's never going to be absolute consensus by every American. And there are those issues, again, like Roe v. Wade, where I believe are best held on a state level and addressed there. So you know, going through the history of America, there would be others but …Translation: I'm not going to answer the question, so I'll just repeat myself about how wonderful federalism and add that American history is great.
When you're talking about bad Supreme Court cases, it's not a good time to call American history "great," since the worst decisions entail slavery and segregation, which were, to say the least, not great.
Couric: Can you think of any?The gotcha is dripping from her lips.
Palin: Well, I could think of … any again, that could be best dealt with on a more local level. Maybe I would take issue with. But, you know, as mayor, and then as governor and even as a vice president, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today.Now, it would have been better to go back into history -- Palin brought up history -- and name a couple of the notorious cases that everyone acknowledges were bad. I suspect that Palin worried that she might get a case name wrong or that she'd be quizzed about exactly what happened in those cases and that she had a risk-avoidance strategy. Stalling for time, she began to repeat the old federalism point -- "best dealt with on a more local level" -- and then she shifted to a perfectly good excuse for not accepting the invitation to discuss Supreme Court cases: An executive official -- a mayor, governor, or vice president -- should respect the authority of the Supreme Court as it has articulated the meaning of the law.
If Palin had named some current cases -- as opposed to the historical cases that the Court itself has already disavowed -- that she disagrees with she would be claiming greater expertise in legal analysis than the Court itself or, alternatively, she would be saying that the Supreme Court's interpretation of constitutional law is not final.
Either proposition would be difficult to maintain and should not be attempted in an impromptu style in a high-stakes situation. This is the sort of thing a Supreme Court nominee facing confirmation hearings would prepare for intensely and face with trepidation. Palin deserves credit for seeing the situation for what is was and opting out.
It is difficult enough to maintain that one Supreme Court case is wrong, and Roe is that one case. The decision to oppose that case has been carefully thought out and is exceedingly important to Palin and others. (Note: I support abortion rights.) Roe stands apart from everything else because it entails what Palin, I presume, sees as a profound moral wrong: the continuing widespread murder of innocent babies. There are not some additional cases to toss in alongside Roe. The general rule, to which Roe is a unique exception, is that the Supreme Court is the authority on the meaning of constitutional law. And that is exactly what Palin said.
UPDATE: I address Couric's corresponding interview with Joe Biden here.