Monday, December 05, 2005

Don't pin your hopes on overturning Roe

Many of us hope and pray that someday -- perhaps not many years hence -- the United States Supreme Court will overturn its execrable Roe v. Wade, and with it, Doe v. Bolton and the whole body of "law" that came as a result.

This is why so many voted for George W. Bush, despite many other flaws in the man -- including not being 100% prolife (he supports allowing abortionists to kill unborn children when their fathers were rapists or a close relative).

The reality is, the odds are not good that the Court will overturn Roe.

"Wait a minute -- how can you say that? We got Roberts, we have Alito on the way -- all we need is one more vote!"

Well, there are a lot of assumptions in that statement, and assumptions are not facts.

The fact is, we all hope Chief Justice Roberts will vote to overturn Roe -- and Alito with him, if confirmed. And, we have some reason to hope for that. But it is far from certain.

Let's focus on facts, shall we?

What do we have that supports the hope that Roberts will vote right? We have glints -- he's a practicing Catholic, attending the "right" parish, his wife was active in a prolife organization, he worked for the Reagan Administration, and in that capacity, wrote briefs that were promising, and his overall judicial philosophy would seem to point in that direction.

But really, we have only inferences. They are promising, but that's it.

Meanwhile, we do have facts -- real facts -- that count the other way:

Roberts said, over and over, he'd set aside his own, personal views; he said his political advocacy was a different time and circumstance; he said he was just that: an advocate; and his own views are just that: his own. We know that while he mostly behaved as a conservative in his Reagan-era and law-firm work, he occasionally helped the other side. And, we know -- we heard him say this -- that he felt bound to respect precedent. No, that doesn't preclude him overturning Roe, but it at least raises the possibility that he would! (Put it this way: suppose he ends up upholding Roe: will you be able to say he misled us? NO.)

I must also point out that Roberts said nice things about the "right of privacy," and even about the cases originating the very problematic formulation of the same.

He even said that he would be willing to uphold a precedent, even if he believed the original decision was wrongly decided.

Consider whose protege he is: Rehnquist. Rehnquist did, indeed, vote to overturn Roe. But he also voted to uphold Miranda, a decision he vigorously opposed earlier on. It had become, I believe his reasoning was, too ingrained.

Does any of this "prove" how Roberts will vote? Certainly not. My point is, you can't rule it out. You can't seriously argue there isn't basis for some chance Roberts votes the other way.

So, let's express it in terms of odds. Are the odds 100% Roberts strikes down Roe? Clearly not. How high are the odds? Given that we have nothing concrete that he would (unlike Jones, or even Alito), I put him at 70%.

Now, let's consider Alito.

We have more reason to be hopeful here. He actually has ruled on the subject, and in one case, taken a more "prolife" position. His mother says, "of course he's prolife"; again, he's a Catholic; however, he splits his time between a "good" parish and allegedly a "not so good" parish. We have documents where he seems to advocate overturning Roe, identifying himself in that camp.

On the other hand...he is disclaiming those statements, to the dismay of some; he says, again, his personal views will be left out; he, too, seems to indicate some "respect" for the "privacy right," although he may yet say welcome things in his hearings. Jurisprudentially, he's supposed to be just like Scalia, but that's suggestive, not proof.

Finally, he has voted in several cases to uphold pro-abortion precedent. This doesn't mean he's a bad person; but it remains part of the record. It may be discountable; but it also could actually prove a forecast -- you can't rule it out.

About both these men and their "don't worry about me" statements thus far. We're often told to discount that, because "that's what they have to say -- it doesn't mean anything."

Well, aren't they supposed to be honorable men? I consider myself an honorable man: and were I meeting with Senators and addressing myself to the public, I wouldn't feel very honorable considering my own words, my own reassurances, meaningless as I said them. I would feel some duty to do as I said I would do. And I take such comments -- if they mean them -- as an indication that Roberts and Alito would at least have some reluctance to overturn any precedent, Roe included.

So, given some additional positive signs about Alito, I'd put him at 80%.

Now, as it stands, that only gives four votes to strike down Roe -- we must have a fifth.

(Here we get lots of wishful thinking: "maybe Anthony Kennedy will see the light" or "be influenced by the new justices"; maybe Bush will name someone really tough on the third go-round: Jones or Brown! "Maybe" is a laughably weak argument. Maybe I'll be mistaken for Brad Pitt this evening, when I make the rounds at some meetings. Wouldn't bet on it, however.)

Let's be realistic. First, we don't know that Bush will get a third pick. He may; but no basis for assuming it.

If he does, there really is no basis for expecting anyone more "hard core" than Alito. After all, he didn't want to name Alito; he wanted Meirs; in short, he wanted someone, like Roberts, for whom there was no clear evidence of being anti-Roe. He named Alito because circumstances, and his own weakness, forced him to do so. Unless such circumstances reoccur (and assuming the next pick comes with the GOP being as strong in the Senate, which it may not be), it seems to me far more likely he'll revert to form.

And you can't rule out that he'll name someone worse. After all, we really don't know how Meirs would have been; the more we learned, the more troubling she looked. If Roberts was a 70%, Alito an 80%, Meirs looked no better than a 50%, given her seemingly pro-abortion speech that came out. Given Bush continually threatening to nominate Gonzales, and the presence on his lists of other folks who give little hope of being votes against Roe, you have to be a Pollyanna to rule out a genuinely bad nominee. You're asserting he'll be 3-for-3, which even Reagan was not. Even giving Reagan a pass for Kennedy, he was 2-for-3.

So, let's be positive, and assume Bush names someone as good as Roberts. That's another 70-percenter.

Now, let's put it all together:

70% x 80% x 70% equals what? 39.2%!

Okay, let's say I'm being too cautious. Let's make Roberts 80%, Alito 90%; but then I'm going to hold back on Unknown Nominee #3, and keep him or her at 70%. That brings us to: 50.4% (slightly better than a flip of a coin).

Okay, let's be generous: Roberts is 80%, Alito 90%, mystery nominee is inbetween, 85% -- that yields overall probability of 63.2%, which sounds a lot better, but note the assumptions we made to get here -- principally, we're assuming all three, roughly as good.

One fact is unassailable: Bush has made three nominees to the Supreme Court; one is promising, but about whom we have no solid, positive evidence (Roberts); one is more promising, but still not certain (Alito); and one was a true mystery, about whom we became truly alarmed just before she was withdrawn. If you peg both Roberts and Alito at 90% (how can you put them higher?), factor in Miers as someone Bush did nominate, at 50%, that puts us back at 40%.

Bottom line: we can hope; but based on what we know, the odds are long that we'll see Roe overturned by Bush nominees.

P.S. Perhaps you think my reasoning is too negative. "What does it take to be rated 100%"? The point is, no one can be 100%!

For any nominee to be 100% certain to vote to overturn Roe, the matter has to be predetermined! Even if the individual him- or herself predetermined it, that would still not justify calling it absolutely certain. However slim the chances, in such a circumstance, that the justice would vote other than his own determination, you have to allow for the possibility -- so the most you could assert would be a 99% chance; and that is the very absolute best-case scenario, in a world in which the future is not predetermined.

So you work backward from 99%. What if we were discussing Edith Jones, who has made it clear what she thinks of "privacy" law and of Roe. Even Jones, speaking candidly, would, I feel sure, say that she couldn't and wouldn't rule out upholding Roe. High probability, but not certain. Where would you put her? I'd say 95%; there has to be at least some chance the legal case, then presented, would indicate a result other than what we expect and hope for.

That's Edith Jones; not Alito; not Roberts. In the latter two cases, you have to acknowledge, I believe, some very real indicators, real evidence, telling against an anti-Roe decision.

Fact is, if anything, I may be overoptimistic about even these two relatively known quantities. Recall a fair number of folks analyzing Roberts history, statements, etc., and predicting flat-out he wouldn't overturn Roe.


Fr. Larry Gearhart said...

Thanks for stating the obvious so well.

Anonymous said...

Father - I generally concur but we can do little for the Supreme Court. What I would like to hear some time, some day is not a homily condemning the obvious; abortion, contraception, etc. But a homily condemning the subtle vice of human respect. An act of omission based on what would be a negative thought or reaction of another to your good act.

Part of this is at play here. Presuming that they are intelligent, Catholic judges on the Court,it is not a problem of catechetical formation. One can safely presume that the position of their Church is clear and they know it. Rather it is a failure to act. The root of this failure in the general population (with me at the head of the line) and the particular population in the Supreme Court is the fear of the loss of human respect, most often from strangers. This is why most do not say grace in public; what would the waiter think?

Extend this to abortion and the silence of Catholics on the soccer fields and the cocktail parties and the Chucky Cheese birthdays where parents discuss this point will echo clear to our final judgment and in many cases beyond.

More need to be reminded that Jesus mentions hell 24 times in the NT and in every case, there is a sin of omission. A sin, in my view most often predicated by a desire for the respect or esteem of others, even strangers like waiters in restaurant. It would be a grave sin of omission for the FIVE Catholics on the Court to uphold this unjust law for the sake of what is probably human respect (or the respect of decisions that preceded them).

Mark Anthony said...

Riddle me this, Batman: What kind of cheese best describes a bad law? Swiss, of course, because it is full of holes.

I agree that the news of the reversal of Roe and its misbegotten progeny is premature. Consider for a moment, though, what would happen most likely if Roe were overturned in an unambiguous way.

First, it would not outlaw abortion, but only make it possible to do so. The states, and presumably the U.S. Congress, could pass laws running the spectrum from all-out prohibition to complete permission. It is true that many states would outlaw or severly curtail abortion, but every state would become an overnight battleground. The election of every governor, state legislator, state senator, state and county judge, etc. would be fought on the basis of the abortion issue.

The pressure on federal races would heighten, not diminish. Imagine the presidential election following such a decision, with the present roles of the "pro-choicers" and "pro-lifers" simply reversed. The political chaos on federal, state and local levels would be intense.

Both sides also would have an impetus to seek a constitutional amendment. Certainly the "pro-choicers" would argue that only an amendment would protect against the political swings of the Court. The "pro-life" camp would have to admit that its victory could be reversed in the future also.

So what is the answer? Well, the ultimate answer is a constitutional amendment forbidding abortion, but it is a political impossibility at this juncture. So we must fall back on the "cheese" theory. Let a Roberts/Alito/Thomas/Scalia/? majority start poking holes in Roe. Spousal notification, parental notification, waiting periods, limitations on late term abortions, state control over medical facilities used, etc.-- all would keep Roe on the books in a technical sense, but weaken its practical impact. Not ideal, but most likely to radically reduce the profit margin for abortionists and so the number of procedures.

It is better start than what we have, and more likely to break the abortion industry.

Fr Martin Fox said...

Father Larry:

Well, it may be obvious to you and me, but it's far from obvious to a lot of folks. That's why I wrote the post, and was painstaking in outlining my reasoning.


I think you're mainly right. No question the political situation would be resorted significantly.

I would enjoy having the pro-aborts seek a constitutional amendment, actually; that'd be a great fight to have, in Congress and in the states. It would never get that far, alas, for the reasons you state.

And I agree that some of the laws you mention would be helpful.

Some ideas aren't so helpful. A ban on partial-birth abortion, if upheld, will have little effect: most will simply have the abortion earlier, legally.

Some "clever" ideas, such as banning "sex selection" are meaningless, and actually harmful, because they give pro-aborts a chance to look good, without doing a thing.

But I don't disagree that the Court could open the door, and maintain the figleaf of upholding Roe. That is the sort of thing the Supreme Court has done many times in history.

Anonymous said...

Moving the Supreme Court to the right is kind of like moving the USCCB to the right from their wacky left wing position on about everything in our Church. There is no doubt that we are moving the court to the right a little at a time. If Stevens retires while Bush is still in and we get another relatively young person who is conservative, we will have definitely moved the court to the right and some like Kennedy will begin to move with it as well. Remember that the court does 90% of their work based on written materials and with Roberts, Alito, Scalia, and Thomas you already will have far more brain power than those on the left. Kennedy will see his vote attached to some very weak written arguments or to the strong ones written by these new conservatice giants.

The church as well will begin to move as we see the power of some of the new conservative giants stand up to scrutiny versus some of the old Bernadine boys.

Anonymous said...

Rehnquist did, indeed, vote to overturn Roe. But he also voted to uphold Miranda, a decision he vigorously opposed earlier on. It had become, I believe his reasoning was, too ingrained.

I've heard it said over at ConfirmThem that one of his clerks said that he pulled a Warren Berger and joined the Miranda majority so he could assign the opinion (to himself) and limit the scope of the decision. I remember seeing a TV interview with him on Fox News a couple of years; when he was asked about his alteration of opinion on Miranda and his body language suggested that that may indeed have been the case (though of course my memory could be playing tricks on me).

Even if that isn't the case, there is a clear difference between Miranda and Roe: Miranda isn't controversial, except in very small circles, whereas Roe is still very controversial. If Miranda had been decided twenty years earlier, Scalia would probably have voted to uphold given his support for New Deal decisions.