Friday, November 11, 2005

What the Alito Debate is Really About

Via Jane Galt, we get a link to this expression of frustration (with respect to CJ Roberts) with the reduction of SCOTUS to a one-issue body by most of the polity:
Make no mistake, then - the Supreme Court is no longer the Supreme Court of past fame. It is now the National Abortion Tribunal, and its members are no longer jurists, they are the Keepers of the Abortion Toggle Switch.


Fig. 1A. Abortion Toggle Switch, closed.
Suction motors will engage.

As we can see from the schematic diagram above, the Abortion Toggle Switch is currently in the closed (ON) position. The entire purpose of the so-called Supreme Court, as current wisdom understands that purpose, is to stare at this switch all day wondering whether they should play with it or not.

This is both true and sad. The Roberts/Miers/Alito process could have spurred a discussion about what the proper role of the judiciary is within our constitutional framework. Instead, all we get is a bunch of results-oriented drivel from cynics on both sides of the spectrum basing their recomendations on breathless predictions and reading of tea leaves as to whether Alito will vote to *gasp* overturn hoary precent emodied in Roe.

The Judge as an impartial and apolitical arbiter may be dead...and it's the politicians who killed him. As Jane says, "[we] have no one to thank but the folks who decided that the path to freedom lies in ramming their opinions down the nation's throat with a one-vote majority." For someone who chose "law" over "business" because of the rules which had to be followed by these impartial decision makers to determine 'winners and losers', this is an unwelcome and uncomfortable development. As strong a supporter of women's reporductive rights as I am, I wonder whether such a divisve question is best resolved by the courts. (As a side note, this Hit & Run post has some interesting stuff about how abortion became such an explicitly left-right issue). If Roe was reversed, could we get back to talking about law?

(That being said, on balance, I think that Roe should be upheld, but that opinion is based more on pragmatism than any underlying constitutional principle, which in itself makes me uncomfortable. If I had my true druthers, I would like the result affirmed by the rationale changed to something under Equal Protection rather then the inherently murky 'Substantive Due Process - fundamental rights' approach of Roe itself)

Note: I highly recommend Jane's recent series of posts on the topic. Whether you agree or not, they frame the debate nicely and raise some issues that seldom get discussed. See also here, here, here, here, here, here, and here. And of course, Freakonomics created quite a stir with the implication that legalized abortion correlates with lower crime rates. Repeat after me, correlation does not prove causation...

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