Thursday, March 20, 2008

Heller is Not Roe: A Word About Political Coalitions and Supreme Court Appointments


Over at Convictions, David Barron argues that the eagerness of conservatives to uphold gun rights shows that they are also eager to overturn Roe, despite the damage this would do to the Republican party.

As one of the leading purveyors of the claim that the Court will chip away at Roe without overruling it, I respectfully suggest that David's logic is flawed.

The issue is not anger but the preservation of political coalitions, and it is not about the motivations of the sitting Justices but the motivations of the people who chose which Justices to appoint. Keeping Roe on the books keeps the Republican coalition together; getting rid of Roe rends it asunder. That is why the Republican Party now has a reverse litmus test for Justices. Deciding Heller in favor of gun rights, by contrast, does not split the Republican coalition. Therefore there is no reason for Republican Presidents to appoint Justices who will reject Second Amendment claims.

I continue to predict that Roe will be hollowed out in cases like Carhart without being officially overruled.


I'm not sure that's right. A decision upholding the DC law would be great for Republicans politically, I think. I don't think that's how they make decisions, though.

Chris, as I said in my post, that is not the question. The question for Presidents in making appointments is whether a certain decision (overturning Roe, upholding gun rights) will split an existing successful coalition. If it doesn't, there's no problem with making appointments that will further the ideological agenda of the party.

Maybe you're right that there's a big difference between coalition-preservation and coalition-strengthening judicial decision making. But I'm not so sure. At a time when the Republican coalition's looking pretty frayed, why wouldn't a justice concerned chiefly with the health of that coalition try to help it out by getting all the 2A fanatics out to vote? Clinton thought Gore lost Akansas in 2000 because of gun rights, for instance. For me, though, as I say, all this is hypothetical, since I don't think they make decisions that way. But I don't see why there would be such a Tversky-&-Kahneman-style preference for existing coalitions over potential future ones.

If I count correctly, there are not five votes to overturn Casey . . . as Kennedy is the swing vote. We would need another vote to really test the theory. With Kennedy as the swing vote, Roe can continue to be chipped away. Replace Stevens with a justice who votes like Alito, and you would get another result.

The question then is whether a coalition could keep itself from purposely shooting itself in the foot. I wonder if the Republican coalition, given the opportunity, could help itself from not appointing an anti-Roe justice, in the interest of coalition management. Sort of doubt it.

"The question then is whether a coalition could keep itself from purposely shooting itself in the foot."

Shooting itself in the foot is one way to see it; working itself out of a job is another.

David's argument appears to be a logical challenge to the highly questionable and not a little paranoid claim that:

1) Large segments of the GOP coalition only stay with the GOP to challenge bad law.

2) These segments will go back to being Dems once the bad law is reversed.

3) Conservative jurists' goal is to preserve the GOP political coalition by chipping away at, but not reversing bad law.

As David pointed out, if this thesis had any merit, then the conservative jurists on the Supreme Court would not be eager to re-establish the Second Amendment right and therefore reverse the bad law issued by the courts since Miller out of fear that all those gun totting Dems would go home and the GOP coalition would be undone. In fact, the four conservatives and one quasi conservative appear to be eager to reverse the constitutional absurdity known as the collective right theory without a second thought to the effect on those gun totting Dems.

I would join David in suggesting that abortion is no different. Kennedy appeared to be personally repelled by abortion and the four conservatives simply believe that Roe and its progeny have no basis in the Constitution. If McCain gets elected and actually appoints strict construction justices to replace the 2-3 elderly liberals on the Court, Roe is in severe danger.

Overturning Roe will lead to a split in the Republican coalition between people who regard it as bad constitutional law but do not feel so strongly about abortion itself and people who want an all-out ban on abortion.

Finding that the Second Amendment protects an individual right could lead to another sort of split -- between people who interpret that as forbidding any sort of arms (and not just firearms) regulation at any level of government, and people who are willing to allow varying levels of regulation so long as they stop short of complete prohibition.

First, for the sake of accuracy, I don't think the continued viability of Roe (no pun intended) is the issue here; it's Casey, which already triviliazes the right by allowing ad hoc transmogrification of the "strict scrutiny" test.

That being said, Casey does preserve a limited individual right to freedom from the state outlawing abortion.

If that right were overturned overnight, the result could be - and should be - the "dust bowl" of the 21st century. Since people are free to resettle, the predictable result would be that they would leave repressive states and move to progressive states. States that pursued aggressively their new freedom to outlaw abortion outright, without constitutional violation, could see a significant exodus.

The result would be crippling to the electoral college power of "red states" after the next census-taking. It would assure that the country was run by a DNC-agenda-led government as soon as redistricting was concluded, and continuing for decades perhaps. In addition to losing representation in the federal government, these states would also find themselves with less revenue.

This would not be politically expedient for the ruling party.

So there are two possibilities. The most likely is that they will "chip gradually" - not because Alito, Roberts, Scalia and Thomas lack the psychotic desire to allow states to criminalize abortion, but because it is politically expedient to allow that criminalization to come on gradually.

The second, and less likely, is that they are just waiting until after the next census to grant cert in an abortion rights case, so that when they do indeed overturn roe, and the population resettles, it will not have a major impact on political redistricting for several more years, allowing the momentum of our current ruling party to continue.

Mr. Balkan;

You're right in that Abortion is what is keeping the Republicans competitive, but you're wrong about Gun Control not being part of that package.

There are three reasons that, since 1979, Republicans have been competitive in National Races, while steadily continuing to lose in local or regional races--Abortion, Guns, and Patriotism.

There are quite a few nominal republicans, or so-called Reagan Democrats who are for protectionism, are pro-union, want large social and intrusive government programs, but believe the 2nd amendment protects their right to own just about any gun, believe strongly in America as a force for good in the world, and are against abortion (to greater or lesser degrees).

Once the Democrats stop being the party of Gun Control, Abortion on Demand, and America Last the Republicans will wind up being the "loyal opposition" as they were for 40 years.

matt k. said...

If that right were overturned overnight, the result could be - and should be - the "dust bowl" of the 21st century. Since people are free to resettle, the predictable result would be that they would leave repressive states and move to progressive states. States that pursued aggressively their new freedom to outlaw abortion outright, without constitutional violation, could see a significant exodus.

Not likely.

We already have a defacto ban on abortion in much of the Red parts of the country. An estimated 87% of all counties and 31% of the nation's 276 metropolitan areas already lack an abortionist.

At the same time, the citizenry continues to migrate away from the Blue coastal megalopolises where abortion is readily available to these Red areas.

Consequently, the ability to legally kill off one's children does not appear to be the draw you believe it to be.

The notion that the Republican Party would be harmed by the overturn of Roe is widely held, and just as widely off the mark.

It is the Democrats' job, and the Democrats' promise to their constituents and interest groups, that they will defend Roe and Casey.

If Roe and Casey fall, the response will not be for voters to rally to (apparently ineffectual) Democrats as a vehicle for change, but to hold them in contempt for their failure. It's not fair, or justified, but that's how voters think.

Republicans would thrive on such a "pox on both houses" response from Democratic constituencies. That's why they won't be reluctant at all to overturn Roe. I'm afraid that they have already figured this out, while Democrats haven't.

Mr. DePalma,

Most people do not need abortions. Consequently, actual unavailability is of only so much relevance. People simply do not thrive in repressive states. They never have and never will. The other salutarious advantages of progressive states, including but not limited to our "coastal blue states" continue to draw the people who contribute to the economic leadership of our country.

Mr. Greg,

If a more vigorous assault on abortion rights would not be of benefit to the Democratic party, why does the Republican political leadership bother to pull even a single punch, such as they have been doing?

Your theory is inconsistent with an economic analysis. Under an economic analysis, one assumes that individuals take the action that gets the result they want, the result that maximizes their welfare. A lack of abortion rights denigrates the welfare of some people; if those people are upset by that unavailability, they will take action to correct it - they will band together and form stronger voting blocs to change the status quo.

Now, the problem is I am assuming that people will act with rational self-interest. I am aware that they do not always. But I am not convinced by your assumption that they will not here. Neither of us have any strong evidence that they will act rationally, or irrationally, but I do not see the point in assuming that large groups of people will go out of their way to act irrationally.

Matt K.,

Your criticism only makes sense if they have been pulling punches. Let's look at only the most significant -- even most decisive -- abortion battle: Supreme Court appointments.

The "Republicans will pull their punches" idea makes sense only if you believe that where they have the power they will not appoint a fifth Justice, replacing Kennedy, who would favor overturning Roe.

At face value: how likely is that? Do we really expect that if McCain appoints a Justice to replace, say, Stevens, that person will have been vetted to not really be anti-Roe? Souter is for retaining Roe out of conviction. Do you think they are going to find a conservative judge who will fake it?

So far as past performance goes: if they were going to pull punches on appointing anti-Roe Justices, why didn't they do so with Roberts or Alito? The appointment of both suggests no inclination to pull punches (and thus alienate their base.)

They haven't been pulling punches; the Supreme Court is the only contest that really matters here. They have been squeezing as much juice out of the existence of Roe as they can, while they can. But at some point, they have realized, if they keep appointing more Justices, they are going to win.

They're probably at peace with that. They'll be winners, and no one likes losers. Democrats have also abandoned the party because of its perceived complicity with the GOP regarding the war, failure to impeach, etc. That may not make sense so far as Downsian rationalism goes, but it's the way politics actually works.


The court currently consists of 7 Justices appointed by GOP presidents, and the two that were not were both vetted by a GOP-controlled congress.

It is not however, in the sense of appointees that I believe they have pulled their punches, but in legislation. Since October 25, 2002(a day that will live in infamy, if I may so so myself, and may the late Senator Wellstone rest in piece), the oval office and the hill have belonged solidly to one party. The constructive interference from this relationship is evident in the number of bills and non-legislative projects that were passed with little to no oversight. Moreover since the retirement of Justice O'Connor, there has been a solid plurality on the court. Even with Kennedy as a swing vote who protected abortion in the Casey sell-out of Roe, he voted with the majority to deal a symbolic blow to abortion rights in Gonzalez v. Carhart. There was in short an excellent 4-year window - a golden opportunity - to do plenty of anti-abortion legislation at the state and federal level, and very little was done.

That opportunity is now lost at the federal level, at least until the "complicitous" and "ineffective" Democrats spoil their chance at a November victory.

Stevens can only hold on for so long, and while his replacement will not change the ratio of Republican appointees to Democratic appointees, it will be a chance to replace a "rogue" with a good hack, or perhaps a Pickering-type. At that point, if they don't do some damage, it will be evident if they are pulling their punches.

But I don't think I need to wait until that happens (or doesn't happen) to say that they haven't made the most of the opportunity they had, and to wonder why that is.

Of course they've been pulling their punches. But you might consider that they've been doing it out of personal conviction, rather than political expediency: Just because you're stuck representing yourself as "pro-life" because your party and the other party have divided up the voters that way, doesn't necessarily mean that you hold the view yourself. Picking Supreme court Justices, where you get to do a lot of private interviews, but it's traditional for the candidates to be mum in public about their views, is a great chance to screw over constituents you privately disagree with.

"The court currently consists of 7 Justices appointed by GOP presidents, and the two that were not were both vetted by a GOP-controlled congress."

Actually, Ginsburg and Breyer joined the Court before the Republicans took over.

In a different sense, Heller is very much like Roe. That the Constitution provides an unmitigated individual right to own weapons is controversial, and most US citizens support some kind of regulation on the type of weapons available. So Heller will always be subject to being hollowed out, just like Roe is.

Well, yes, in a trivial sense they're both "controversial", in the sense that you can find people on both sides. If you go any deeper they're vastly different, in that Roe involved an unenumerated right the Court essentially created out of whole cloth, and that's so whether or not you think creating it was a good idea.

While Heller involves an enumerated right the Court has been permitting the lower courts to subject to the death of a thousand cuts, while until Heller turning away without comment every attempt to get a Supreme court ruling.

You couldn't get much more different than that, and have them both be court cases.

By the way, the notion that a right needs to be "mitigated" sure indicates which side you're on in this case.


Oops - you're right. Wow - I can't believe it's been that long!

Yes, they've pulled their punches so far as legislation goes. They haven't needed to do otherwise. Most of the legislation at issue is either good politics if it loses, or else -- like even the law against the ID&E method -- affects relatively few women.

But that's not the issue. They've been able to pull their punches as regards legislation because there is only one decisive battle royale in the abortion debate, and that is whether Roe and Casey are upheld or overturned. That, in turn, is determined by the replacement of one of the Kennedy and the moderates by another anti-abortion conservative.

The discussion was about whether the politics of overturning Roe were good for the GOP or not. You can't divine anything by how they have acted regarding legislation. Fights over legislation are just skirmishes: Republicans may be gladdened, Democrats saddened, by some new restriction. But appointing that potential fifth anti-abortion Justice: that's the decisive battle in the war.

Democrats won't merely be saddened if it ever happens. They'll be crushed, in most senses of the word.

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