What Abortion Debate? Why there is no honesty about Roe.

[Thom Little]

In a 1986 case called Bowers v. Hardwick, the Supreme Court ruled that state laws against homosexual sodomy do not violate the U.S. Constitution. In a 2003 case called Lawrence v. Texas, the court ruled that on second thought, anti-gay-sodomy laws do violate the Constitution. Liberal politicians cheered this rare and unexpected admission of error by the court. They did not express any alarm about the danger of overturning precedents. Plessy v. Ferguson, upholding racial segregation, was a major precedent when the court overturned it and ended formal racial segregation with Brown v. Board of Education in 1954. Liberals did not complain.

These days, the vital importance of respecting past Supreme Court rulings is an urgent talking point for Democratic operatives, liberal talk-show hosts, and senators feeling their way toward a reason to oppose Supreme Court nominee Samuel Alito. Olympia Snowe, a Republican liberal from Maine, said Wednesday that Alito's respect for precedents will be "the major question" in her decision whether to support him.

The major question for Snowe and other liberal senators actually is not respect for judicial precedents. The major question is abortion. They want to know whether Alito would vote to overturn Roe. But by the absurd unwritten rules of these increasingly stylized episodes, they are not allowed to ask him and he is not allowed to answer. So the nominee does a fan dance, tantalizing the audience by revealing little bits of his thinking but denying us a complete view. And senators pretend, maybe even to themselves, that they really care about precedents and privacy in the abstract.

The artifice can get quite elaborate. Sen. Arlen Specter, chairman of the Judiciary Committee, makes a half-serious distinction among precedents, super-precedents, and super-duper precedents. Others emphasize that social policies can start with a Supreme Court ruling and develop into deeply rooted national values. That happened with Roe and abortion, they would say, while the opposite happened with Bowers and laws against homosexuality. Of course if a policy has really become a deeply rooted national value, then the once-controversial Supreme Court ruling is superfluous, because democracy will protect such a value. The fear that motivates Roe panic is that the rights at stake are not deeply rooted. Or not deeply rooted enough.

http://www.slate.com/id/2130607/