The Constitutional Catechism

JB

The Alito hearings make clear that at this point in American constitutional history, a Supreme Court nominee must recite a catechism of belief if he or she is to be confirmed.

The nominee must state that he or she (1) believes that there is a right to privacy, (2) that Griswold correctly protected this right of privacy at least as to the right of married persons to purchase and use contraceptives; (3) that Eisenstadt -- which extends Griswold to single persons-- is correctly decided as to its result; (4) that Brown v. Board of Education was correctly decided, (5) that Plessy v. Ferguson was incorrectly decided, and (6) that the one person one vote principle in Reynolds v. Sims is correct.

The nominee must also agree that Roe v. Wade and Casey v. Planned Parenthood of Southeastern Pennsylvania are Supreme Court decisions that are entitled to the weight of stare decisis. However, the nominee need not agree that these decisions are correct or beyond reexamination in the way that Griswold, Eisenstadt, Reynolds v. Sims and Brown are.

What explains this particular catechism? It is not that the reasoning of the original decisions in Reynolds v. Sims, Griswold, Eisenstadt, and Brown is particularly more accomplished than the reasoning of the Court in Roe and Casey. All of these decisions had problems with the way that they were reasoned. Brown is famous for its-- shall we say-- condensed account of the reasons why Plessy should be overruled (and it does not even overrule Plessy, but simply says that Plessy does not apply to elementary and secondary education).

No, the reason why this particular catechism has developed is that it reflects the views of the current dominant national political coalition about what constitutional questions are off the table for revision. The cases I have just mentioned were not always beyond question in the past, even years after they were originally decided. They were, at one point, controversial. But by the 1964 Civil Rights Act, Brown had entered the pantheon of cases that had to be correct, and one of the interesting side effects of the Bork hearings in 1987 was that Griswold had also entered that list. And we can be quite sure now, as a result of the Alito hearings that the list also extends to Eisenstadt-- which extends Griswold to the right of single persons-- and Reynolds.

The flip side of being settled in this way, is being still up for grabs for future revision or even outright overruling. The coded expression for this is that the issues raised in the previous decision (whether Roe, or Casey, or something else) might someday come before the Court so that the nominee must not prejudge whether the decision should be retained. Obviously the "issues" in Brown and Reynolds come up all the time in current cases-- think about the affirmative action cases and redistricting cases that have come to the court in recent years-- but that is not what Alito or any other nominee really means. The idea is quite different-- that one can disagree about the legitimacy and or scope of the case and still be confirmable, that is, within the mainstream.

If nothing else, Supreme Court nominations have this interesting effect-- they give us clues about what has entered the constitutional catechism, and therefore what different parties have given up fighting about and what they still believe is worth contesting in order to please their particular constituencies. The reason why nomination hearings have this effect is that no Administration wants its nominees to be thought outside the mainstream. To forestall that accusation, members of the Administration must decide what constitutional issues the nominee must accept as beyond question, and, conversely, what constitutional questions are still worth fighting over.

Roe and Casey are perfect examples of this trend. In the views of many Republicans, they are still on the table for revision or outright overruling. Senator Feinstein adverted to this fact indirectly when she said that she had a suspicion as to why Alito was "willing to say that you believe one man, one vote is well settled and you agree with it," but could not say that same thing about Roe: "If you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know."

Note, however, that the constitutional status of Roe and Casey have mutated over time, and we can see this in the rhetoric that John Roberts and Samuel Alito have used. Both state that Roe and Casey are precedents of the Court entitled to the respect of stare decisis. That may not seem like much to pro-choice advocates, but what it does suggest is that Supreme Court nominees may no longer denounce Roe directly as Bork did in his hearings. I would venture to state now that any nominee who directly and forthrightly stated that Roe and Casey were illegitimate decisions and should be overturned would not be confirmed.

That is important not because it means that Roe has become fully accepted. It has not. What it does mean is that Roe's status has not eroded as many pro-life advocates had hoped it would, even with a Republican President, a Republican controlled Congress, and a Republican majority in the federal courts and the U.S. Supreme Court. The constitutional catechism that Supreme Court nominees must recite is a way of taking the temperature, so to speak, of particular constitutional controversies and the degree to which they have reached settlement. What is remarkable about the Roberts and Alito hearings is not that both nominees have resisted supporting Roe but how far they feel they must be willing to go in disguising their actual views about it.