Known UnKnowns and the art of putting 5 knowns unknowingly in US Supreme Court

In 1973 US Supreme court ruled in favor 7-2, of allowing abortion under the Constitutionally protected “right to privacy" in a land mark case called Roe vs Wade. Before that some states had allowed it and most states had banned it. Women were having abortions in back alleys or driving off to Mexico. It will be foolish of me, the weekend legal scholar if I venture into determining if there is a "right to privacy" in US Constitution.

Literalists', (who call themselves "originalists") interpretation is, there is no such right. Because for them, every right has to be enumerated, otherwise it is absent. For e.g., its leading proponent Justice Scalia, in a case involving the hospital visitation right of a son born out of wedlock to visit his father, argued that by English common law, bastards have never had any rights (like inheritance). Hence a bastard son cannot have visitation rights to his illegitimate father. The "adaptationists" approach is to interpret the constitution as a living document that has to be interpreted according to the evolving standards of a decent society. In the same case, Justice O'Connor interpreted that "fatherhood" had certain rights in common law and hence the son had them too.

Going back to abortion, in 63s Connecticut, there was a case involving a married couple using condoms in their bedrooms. You would have to scratch your head if I say that it was then banned by Connecticut state law. They were prosecuted and the case went up to US Supreme Court. The court ruled in favor of Griswold saying the couple had a right to privacy. The originalists could not oppose Griswold without being branded insane. But when the Roe v. Wade was decided with Griswold as a precedent it became hard to swallow. Since then they have been arguing that there is no enumerated right to privacy in the Constitution. The US Constitution says un-enumerated rights belong to the States and rights un-enumerated in States belong to the people. So if you establish that principle, you get the issue back to States where nut states in South and interior can enact their own statutes banning abortion.

Providing philosophical ballast to them have been the social conservatives who consider that human life begins at conception and hence abortion is murder. They have been chomping at the bit legislatively to erode the doctrinal basis of Roe v. Wade by enacting laws like "Laci Peterson" law which says if you kill a pregnant woman you will be charged for 2 murders. Since 73 the Conservative right have been itching their palms to overturn Roe. But the social environment has changed and hence they are not able to find a legislative majority in the US Senate to overturn Roe. So every pick of Supreme Court justice is an opportunity for them to accomplish something judicially that they cannot accomplish legislatively. That’s some originalism. In 87, Reagan appointed Judge Robert Bork to the Supreme Court. He shot his wise mouth off in the confirmation in favor of overturning Roe and was promptly defeated on the floor (hence Borked). Enter the era of stealth candidates: that speak nothing and answer no question about anything remotely concerned with Roe at the hearings. Kennedy who was his replacement was billed privately to the conservatives as a strong “pro-life” guy turned out to be reluctant to overturn Roe. Score still 5-4. Enter David Souter: the unknown from New Hampshire, turned strong liberal and staunch supporter of Roe. Score 6-3. Enter Clarence Thomas: swore under oath that he never an opinion on that case. The morning after the confirmation he started attacking Roe. Score 5-4. Both Clinton nominees did the same kabuki dance and became reliable Roe supporters. Score still 6-3.

Bush’s main plank in 2000 and 2004 were a strong coded message that he would appoint judges like Scalia and Thomas. He made no bones about his position on the abortion issue. Now when the swing vote O'Connor retired, the court became 5-3. Enter John Roberts: the law machine. Exit: William Renquist. Re-enter John Roberts as Chief Justice. At the hearings without getting into Roe, he laid out his criteria for overturning a precedent, which are

In favor

1. Unworkability of the existing ruling.
2. Doctrinal basis of the ruling has eroded

Against

3. The ruling has fostered stability in the society. Overturning them would upset settled expectations of law.

My assessment is 3 is still solid, 1 mostly solid (i.e. it is not unworkable), 2 questionable to interpretation and vulnerable to history. So where does that leave us? Back to 5-2-1(?).

Now conservatives really wanted a solid 1 to make the score at least 5-3-1(?) with Roberts amenable to compromise. But any sure commodity was sure to be fried in Senate floor. What did Bush do? He appointed the most Unknown, chairman of the search committee herself, his personal counsel Harriet Miers. Conservatives are livid at this choice of unreliable Unknown. Ayatollah James Dobson was given “private” assurances that Miers is pro-life. He declined to disclose what the assurances were. Not to be left out Democrats forced Miers to say that White house does not speak for her and no assurances given by anybody on behalf of them would bind her. Hit from the right, Bush is saying to them she goes to Church, she is Christian, she believes in Creation, she shares his “philosophy”. Only thing left out now is for Miers to have a public baptismal oath to overturn Roe. Now the left/moderates would demand contrary assurances to confirm her. Everyone is trying to divine her intuition. This one exemplifies what is going on : Pat Leahy (D), the No.2 in Senate Judiciary Committee asked Miers who was her favorite Justice. She said "Warren". Earl Warren the liberal icon (who would have voted for Roe) or Warren Burger who did vote against Roe? One would think she meant Earl Warren as it is the usual practice to refer one by one's last name. Bush supporters say she said Warren Burger. Pat Leahy says no, she meant Earl Warren. Enmeshed in all this is the politics of Republican Primary 2008. For next 6 weeks of non-stop Byzantine opera stay tuned to Washington.

Additional Material :

Current Make up of the Court with their health indicators.

For Preserving Roe:

John Paul Stevens (very old)
Ruth Bader Ginsburg (has cancer)
Stephen G. Breyer ( OK)
David H. Souter (OK)
Anthony M.Kennedy (OK)

Against Roe:
Antonin Scalia (OK)
Clarence Thomas (OK)

Unknown:
John G. Roberts (SUPER OK)

Waiting in the wings:
Harriet Miers (OK)