Come Sunday — Jan. 22 — the most inflammatory decision in judicial history turns 33 years old. Americans still batter each other over Roe vs. Wade: Supporters are fretful lest the U.S. Supreme Court renege on its guarantee of a constitutional right to abort a pregnancy, opponents eager to make the supporters’ frets come true.
Roe’s persistence as a factor in our national life tells much about present-day cultural conditions. But, equally, it helps clarify issues like, well, doesn’t Sam Alito deserve on his merits to sit on the Supreme Court?
Current thinking is that Alito’s skepticism, to put it mildly, on Roe isn’t proving central in the confirmation proceedings. If Sen. Dianne Feinstein of California, one of Roe’s best Capitol Hill pals, can tell "Face the Nation" she foresees no die-in-the-last-ditch effort against Alito, it seems likely the nomination will prevail — and maybe also that abortion, whether it was ever a make-or-break issue in judicial confirmations, certainly seems not to be at present.
The Roe anniversary reminds us pointedly, all the same, why judicial confirmation is one of the huge stories of our time. It’s because of the high court’s power to do exactly what the court of 33 years ago did — give a mere policy judgment the status of constitutional law. Not by taking the issue to the people — oh, no — but just by deciding to do it.
Roe — which overturned the abortion enactments of the 50 states and put forth a federal schema for dealing with the question — is sometimes called a "ukase," meaning a decree by the czar, or a "diktat," the harsh consonants signifying lofty, Prussian-like disdain for insubordination. In fact, the metaphors bear some strong relationship to reality.
Here’s this bunch of guys whom no one elected to anything. Some parties to a lawsuit have put before them a disputed notion, and magically, under the justices’ hands, that notion — the right to abortion — becomes law, governing the way we lesser beings, we non-justices of the Supreme Court, live or perhaps don’t live at all.
Oh, we don’t agree with the court, whether fully or in part? WELL, SHUT UP! Such is the message supporters of Roe have worked successfully for 33 years to convey.
Congress shut up promptly enough. Efforts to reverse Roe by constitutional amendment — the very hardest way of achieving anything — have regularly died. It’s a shame. Congress could send the amendment to the states and let them chew it over in a legislative setting. There would be up-or-down votes. To that degree, at least the voters — a k a we, the people — would have had some voice in the matter rather than just a signal from the high court to bow submissively.
Supreme Court intervention in a matter of such radical importance — a matter with human life at the very center — was without precedent. We, the people, weren’t to weigh in? Weren’t to express, through democratically elected representatives, so much as an opinion (let alone a definitive judgment) on the value of unborn life and the putative duty of preserving same? Not as our nation’s highest court saw things.
Yet we, the people — a significant portion of us, anyway — continue, much to the exasperation of Roe supporters, to see some matters differently. Candidate George W. Bush committed himself to appoint judges less swollen with Olympian pride, less inclined to pose as lawgivers, than certain former appointees proved. Candidate Bush became President Bush. He stuck to his word. Samuel Alito Jr. — a man whose hallmarks are modesty and intelligence — seems almost 100 percent sure to win confirmation.
And the consequences for Roe vs. Wade? Might a remodeled court someday shoot it down, returning life questions to the people themselves? The court actually might not, in consideration of Roe’s nearly gray-bearded longevity. Time, as the saying goes, will tell. What’s nice for now is that modesty-in-high-places seems about to win a big victory — in the U.S. Senate chamber, of all unlikely places! Some days, some years, you take what you can get.