A Litmus Test for the Supreme Court is Nothing New
When considering candidates for the Supreme Court in 2005, the overriding issue that seems to lurk just beneath the surface, beneath only because it is unconstitutional to bring it into the open, is whether this individual would ever vote to overturn Roe v. Wade. The principle of separation of powers between the three branches means that the legislative branch can't pick justices based on a promise to rule a certain way in a future case. Before Harriet Miers' nomination was withdrawn, we were hearing lots of coded suggestions that she would vote to overturn, but never anything explicit from her.
A hundred and fifty years ago, the overriding question was slavery, and again the Supreme Court was at the center of the controversy. The South was well represented on the court at that time and that fact played heavily in the courts decision in the Dred Scott decision, in which the pro-slavery decision of the court reflected the geographical distribution of the justices.
The issues covered by the Dred Scott decision were ultimately resolved by the Civil War and the 13th and 14th amendments. The power of the South over the Supreme Court was broken by the Civil War and never fully restored.
The Civil War did settle the question of slavery. No such apocalyptic event is likely to settle the question of abortion, so the problem must be viewed with due concern for the prospect of a 4-3 vote to overturn, followed a few years and a new administration later, by a 4-3 vote to restore it. I'm sure this prospect worries the justices as well, and a number of very conservative people have expressed reservations about overturning Roe, regardless of the original merits.
Although there are many people who will consider abortion to be the crucial issue, an even more important question may be the role of the court in a stable framework of precedent.
A hundred and fifty years ago, the overriding question was slavery, and again the Supreme Court was at the center of the controversy. The South was well represented on the court at that time and that fact played heavily in the courts decision in the Dred Scott decision, in which the pro-slavery decision of the court reflected the geographical distribution of the justices.
The issues covered by the Dred Scott decision were ultimately resolved by the Civil War and the 13th and 14th amendments. The power of the South over the Supreme Court was broken by the Civil War and never fully restored.
The Civil War did settle the question of slavery. No such apocalyptic event is likely to settle the question of abortion, so the problem must be viewed with due concern for the prospect of a 4-3 vote to overturn, followed a few years and a new administration later, by a 4-3 vote to restore it. I'm sure this prospect worries the justices as well, and a number of very conservative people have expressed reservations about overturning Roe, regardless of the original merits.
Although there are many people who will consider abortion to be the crucial issue, an even more important question may be the role of the court in a stable framework of precedent.
posted by Rob Spooner at 3:08 PM
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