The Interocitor

Supreme Court Gotta-haves

With Sandra Day O'Connor, a notorious "swing" vote, retiring, one should stop and consider what issues and viewpoints are a priority in the "perfect" next Justice. Many will focus on abortion, and Roe in particular, but I'm not going to. I have opinions about this, but since I also think that it's an issue that has driven all too many Supreme Court choices (don't you really wish you'd asked Souter about other things?), I'll leave it to last.

GOTTA HAVES:

• Free Speech -- nominee must be unreserved supporter of unrestricted political speech. Must oppose all attempts to impose "speech codes", "speech limits", or "free speech zones" in political and personal speech. Must view "campaign-finance" laws with a high degree of suspicion. Must view limitations on commercial speech with high scrutiny. Must put all other forms of speech higher than pornography.


• Property Rights -- Must have a strong view of private property and the Takings clause, requiring compensation for all substantial new restrictions on property and limiting eminent domain to items of direct public use.


• Interstate Commerce -- Must have a clear definition of what is, and is not, interstate commerce; the view must exclude viewing purely personal activity as "commerce."


• Right to Keep and Bear Arms -- must view the 2nd Amendment as establishing an individual right. Must say exactly that at confirmation. Non-negotiable.


• Expansive view of "Privileges or Immunites" clause and 9th and 10th Amendments in the following regard: those rights which are widely shared by actions of large majorties of states, can be found to be binding nationally. Case in point: "concealed carry." If 40 state legislatures were to grant same-sex marriage rights, then that, too. It is absurd that judges view the actions of France more important than those of Missouri. [Not a chance in Hell. Clause has been dead since 1875 -- ed]


• Free Exercise clause and Education: Must allow state-subsidized private education so long as allocation of funds is by parental choice. Must not allow content-based discrimination in public use of government facilities.

DESIRED:

• Supporter of the death penalty.
• Unwilling to use foreign law as basis for correcting US law.
• Defers to legislature wherever possbile

ABORTION:

I'm in the large middle on abortion. I do NOT think it should be generally illegal. I ALSO do not think it should be legal in the second half of pregnancy except in clearly life-threatening cases (Roe's "life or health" language effectively prevents any limitations). I do not think the State should accept a child's consent, pay for the procedure and then conspire to hide the event from the child's parents -- especially not as the default condition.

I believe that Roe v Wade was not only wrongly decided, but was a political blunder on the order of the Viet-Nam War. Roe gratuitously instigated a constitutional crisis that has gone on for 30 years and shows no sign of abating. It has consumed every Supreme Court nomination hearing since 1973, caused the Supreme Court to assert complete authority over a political issue, impacted the workings and nomination processes of all lower courts, and -- this is the real sin -- resolved utterly nothing.

In a legislative system, this kind of screwup would be ripe for a motion to rescind and expunge, but I despair this will ever happen at the Supreme Court. Stare decisis is setting in year-by-year (and in fact was cited in Casey). It seems that only a constitutional amendment can overturn Roe at this point. Even without O'Connor (and with Rehnquist), the vote is still 5-3 in favor of Roe.

However.

There is no need for the Court to continue to view the unenumerated right to abortion more strictly than it views any enumerated right. It is actually unconscionable that it does so. Starting with partial-birth abortion and parental notification laws, the Court can begin to view abortion limitations with relaxed scrutiny. Certainly a Roe with a "rational basis" test would satisfy much of the center's discomfort with the current "strict scrutiny" regime, allowing different states to have different standards and reasonable restrictions. While, ideally, it would be possible for states to outlaw abortion completely (to honor both federalism and the Constitution), I don't view this as likely in the foreseeable future.

Therefore a justice who is content to allow some form of unenumerated abortion right to remain, while allowing significant state and federal restriction on the practice, is perfectly satisfactory to me. Give me my other gotta-haves and I'll even wait a while more for this.

Discussion over at the usual places: SCOTUSblog; How Appealing; Volokh

Posted by Kevin Murphy at July 1, 2005 01:58 PM