Balkinization  

Sunday, July 10, 2005

The Reverse Litmus Test

JB

President Bush and his advisors have a litmus test for the next Supreme Court nominee.

But it's not the litmus test you are thinking of.

Liberals and Democrats alike are worried that the President will nominate someone who will vote to overturn Roe v. Wade. They needn't worry. That's not likely to happen. In fact, the only litmus test the President is likely to employ is whether a candidate promises *not* to overturn Roe. Here's why.

Bush must decide if he wants to overturn Roe or preserve the Republicans as the majority party. With Roe gone, the pro-choice movement will be energized and Republican politicians will have to state on the record whether they want to criminalize abortion. Women, libertarians, and moderates may bolt the party, destroying Bush's winning coalition. Republicans may dislike Roe, but they may dislike losing elections even more.

A far more prudent strategy, and the one the President and his advisors will likely adopt, would be to appoint Justices who will preserve Roe but chip away at it slowly, for example, by devising new procedural rules that make it difficult to challenge abortion regulations in federal court, by upholding restrictions on particular medical procedures like partial birth abortion, and by further limiting abortions for minors and poor women. Moderates and independents may not like these changes, but such rulings will be much less likely to induce wholesale defections from the Republican coalition than wiping Roe v. Wade off the books. The latter is a simple, easy to understand result that people can get angry about and rally around. Procedural limitations on abortion, by contrast, are hard to explain to voters and therefore risk less political danger for the Republicans.

Chipping away at Roe slowly not only allows the party to keep moderates and independents from bolting, it also preserves a hated symbol for the party's base of religious conservatives to struggle against. As long as Roe remains law, religious conservatives can point to it as a example of what is wrong with America and with a liberal activist judiciary (which is, of course, increasingly staffed by conservative Republican Presidents!). Thus, the reverse litmus test not only holds the party's winning coalition together, it's also good practical politics.

Ayotte v. Planned Parenthood of Northern New England, a case that will be decided in the coming Supreme Court Term, is a perfect example of how the Justices might preserve Roe as a precedent while effectively wiping out much of its practical effect. The case is nominally about whether New Hampshire must include a health exception to its parental notification law, but it also involves a technical question of procedure: When challenging a newly passed abortion restriction, is it enough for plaintiffs to show that it imposes an undue burden on some class of women, or must plaintiffs show that the language of the law on its face has virtually no constitutional applications? If the latter rule applies, then almost no new abortion regulations can be halted before they take effect; instead, plaintiffs must make a series of individual challenges to specific aspects of the law that affect them personally. These as-applied challenges will take months or even years before they are finally resolved, and the remainder of the new abortion regulations will be enforceable in the interim. That means that states could pass very stringent restrictions on abortion and as long as they had some constitutional applications, they would remain on the books for years until a series of successful as-applied challenges eventually knocked away their most blatantly unconstitutional features. That is not the same thing as overturning Roe v. Wade in these states, but its practical effect is very similar.

And that brings me back to the coming Supreme Court nomination fight. A Bush nominee could easily state under oath that he or she respects precedent and will not overturn Roe and then turn around and vote for this new procedural rule, which would make Roe practically unenforceable in many states.

Indeed, one suspects that Bush's advisors know all of this, and that they may send signals that the next nominee will not directly overturn Roe.

When and if that happens, don't be fooled. Don't pay attention to pundits blathering on about a litmus test for overruling or preserving Roe v. Wade. Keep your eye on the reverse litmus test, the one that really counts.


Comments:

That all sounds entirely plausible, but doesn't that still leave the administration with the very immediate problem of angering the religious Right? It seems to me that the very features of your proposal that would prevent offending moderates are just as likely to anger those who want above all else for Roe to be overturned.
 

Interesting point, but not only would this take a level of sophistication that many of the right may not contain, or WANT to contain; this would also have to be carried out on all scales, thus uniting everyone in local-regional-national elections in a "chip-away-at-Roe strategy. I don't know if you can achieve that at that scale.
 

I don't think it's fair to assert the existence of a litmus test, much less to assert that the president is extracting promises from potential nominees, without any evidence whatsoever.

Further, I think your analysis misses an important piece of the abortion wars: what makes the abortion issue particularly offensive is not just Roe, but all the cases that follow (including what would otherwise be free speech cases). It's the Court's insistence that there can be no limitations on the right to abortion, including no meaningful limits on the most extreme abortion practices. If the Court were to allow democratic deliberation on *any* issues related to abortion policy--that is, if the Court were to acknowledge the equal citizenship and reasonableness of abortion opponents--that would go a long way to defusing the abortion controversy. Which, by your logic, is bad for Republicans.
 

Keep in mind that the first question this administration asks as to policy questions is "How does the proposed policy affect persons whose last name begins with 'BU' and ends with 'SH'?" Part of the president's enthusiasm for Gonzales is that, as a longtime family friend, he need not make an explicit quid pro quo to ensure that Roe v. Wade is not overruled unless and until Jenna and Barbara get sober; a nod and a wink will suffice.
 

First, it is probable that the next court session will be more favorable to exceptions to Roe, even without such a devious conspiracy. Bush could replace both Rehnquist and O'Connor with anti-Roe justices and the court would still have a majority in favor of Roe but more open to exceptions.

Second, I think those who expect some great tidal wave of pro-choice enthusiasm to sweep the country if Roe is ever overturned are greatly misled. The pro-choice movement is already at full-tilt, any moderate or libertarian activists who care that deeply about abortion rights have already abandoned the Republican Party. And moderate voters have shown that they, while on neither end of the abortion spectrum, favor pro-life politicians as less distasteful than pro-abortion ones.

Also consider the great respect most non-activists types have for Supreme Court rulings. If Roe is overturned, in the minds of many it will be a new question, no longer a solemnly defined ‘right’ as abortion supposedly is now. That doesn’t mean the country would turn pro-life, but it seems that some would be more open to that position.

Lastly, George Bush is not plotting his political future, even if he believed your Roe overturned = Democratic success line. He doesn’t make decisions based on his daily tracking polls, will never be up for re-election, and is genuinely committed to changing the current judicial philosophy of the Court. Those who don’t understand this don’t understand George W. Bush. Watch and learn.
 

Well, most judicial changes (e.g., the overruling of Pollock v. Farmers Bank and Plessy v. Ferguson) proceed incrementally, so if you Roe is overruled gradually, it won't exactly confirm your rather paranoid theory about deep Bush machinations. (Personally, I never found the man as deep and subtle as you apparently do.)
 

Will there ever be a day that instead of overturning Roe and sending the abortion question back to state legislatures, a court will recognize a substantive due process right to life for a fetus that cannot make its own decisions in the same manner that the Schiavo bill was crafted to provide due process to an adult that could not assert her own will?
 

with regard to the comment by jeff, the abortion issue and the terri schiavo issue are apples and oranges. this continues the line of reasoning that terri schiavo did not obtain due process. the fact is that this matter went up and down state and federal courts multiple times. the fact that a particular side did not prevail does not mean that there was no due process. it seems to me that there was due process all over the place, especially when one considers that one of the first litigated issues decided was whether or not ms. schiavo expressed a desire, while able to do so, that she would not want to be kept alive by artificial means if she were ever to fall into a persistent vegetative state. the question of due process for a fetus is an entirely different one, but nonetheless falls into the categories of how do you define when life begins, which will probably be argued ad infinitum, and what rights does a fetus have in the first place, which will also probably be argued ad infinitum, but which has generally been decided in the courts already.

with regard to the comments of john herbison, i will probably never be a fan of george w.; however, making these kind off snide quips about his daughters should be out of bounds.
 

"no limitations on the right to abortion"

this isn't true, of course

"including no meaningful limits on the most extreme abortion practices"

thus we are left with the meaning of "no" and "extreme"

"If the Court were to allow democratic deliberation on *any* issues related to abortion policy"

you know, like abortion funding, foreign policy relating to choice, abstitence regulation, parental consent laws, partial birth abortion laws that have "health" exceptions, and ...
 

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