Readers of The New Yorker learned something last week that conservatives have known for twenty years now: that far from being inadequate to the demands of serving as a Supreme Court Justice, Clarence Thomas is one of the greatest – I would argue THE greatest -intellects on the Court today. Jeffrey Toobin, one of The New Yorker’s reliable mouthpieces for the left, has finally observed that Justice Thomas has carved out several areas of Constitutional Law as his own, taken consistent positions on them and has gradually won over a majority of the Court on these positions.
Commentators on the right wonder why Toobin has delivered this tribute. Certainly, Thomas hasn’t moved left, which is the usual reason someone on the left suddenly recognizes the intellectual heft of a conservative they have previously derided as substandard. Nor has Toobin moved right; indeed the purpose of the article is to attack Thomas for leading the way on the presumably pending rejection of Obamacare by the Court.
Some conservatives, such as Mark Steyn, are arguing that Toobin is creating a scapegoat for the Court’s anticipated decision and that Thomas, who will no doubt be leading the debate, can then be subject to another “high tech lynching.” I prefer a more hopeful view: that liberals are starting to realize that you can’t fight ideas with nothing but “raw judicial power.” For years now, they have nominated justices who are not necessarily intelligent, but safe votes for the liberal position on issues. Indeed, not since Justices Felix Frankfurter and Byron White showed themselves to be believers in judicial restraint has the left suffered from a rightward drift in an appointee the way the right has suffered from appointments such as Justice Souter.
But Thomas shows the power of ideas and I find that to be an extraordinary cause for hope, not for conservatism necessarily, but certainly for the fate of liberalism, the law and the country. The phrase “raw judicial power,” which I quote above, comes from Justice White in his dissent on in Roe vs. Wade, which overturned abortion laws and was supposed to settle the issue once and for all. But of course it didn’t.
It didn’t settle the issue because a fiat from nine old men is not a substitute for the democratic process. An intelligent, well reasoned rationale is the only reason a judicial decision deserves credibility when it overrules the right of people to choose the rules by which they are governed. In a healthy democracy, if a political decision is made in an undemocratic fashion, the people will not accept it. What makes a judicial decision, which of necessity is decided in an undemocratic fashion, acceptable is when there is an intelligent rationale for the decision. But Roe vs. Wade has no such rationale, which is especially necessary for a decision which results in changes as sweeping as Roe vs. Wade’s were.
The reasoning of Roe’s author, Justice Harry Blackmun, has the sort of superficial appeal of which lawyers are fond but which has little connection to real life. He noted that in the first trimester, the fetus is not “viable” outside of the mother’s womb. It is, therefore, he felt, no more entitled to Constitutional protection than, say, a parasite. Similarly, in the last trimester, the fetus is capable of surviving outside of the mother and therefore is protected. The status of the fetus in the middle trimester is a bit fuzzy, Justice Blackmun thought, so in this period, abortion is subject to reasonable regulations.
The problem with Justice Blackmun’s concept is that it is frozen in time as of the year in which it was written. Most litigators – and litigators are the ones who generally find their way to the bench – live in the past. They argue about the who, what, when, where and why of an event that has already occurred. They live the lives of historians, sifting through old papers, questioning fading memories, studying old data in order to find justice for their client. They are not in the business of predicting the future and, in my experience, are quite bad at it. They are far less capable of foresight and thinking two steps ahead than a taxi driver negotiating rush hour traffic.
Justice Blackmun’s opinion relied on the state of scientific knowledge as of 1973. Great strides have been taken since then, so now a fetus is “viable” mere weeks after conception and, given the forward momentum of medical science, it is conceivable that viability will soon be almost simultaneous with conception. That would turn the reasoning of Roe vs. Wade on its head and make the opinion a Constitutional prohibition of abortion, because if the rights of a fetus depends on its viability outside of the womb, every triumph of medical science expands the rights of the fetus and narrows the woman’s right to an abortion. Roe vs. Wade is one man’s flawed attempt to define when human life begins and the guidance he offered is increasingly flawed.
In their heart of hearts, pro-choice lawyers recognize the flaws in the opinion and, indeed, the rationale of the Roe opinion has been almost totally ignored since it was issued. But there is no guiding principle to replace Blackmun’s flawed reasoning either. The result is the creation of a vast, and perhaps permanent, intellectual vacuum in the law.
We also have the side effect of masses of people who have taken their opinions to the street because the political forum has been foreclosed to them by the Court. If opinion polls are anything to go by, opponents of abortion are slowly moving opinion against abortion rights. Anyone with an inkling of human nature would have expected that. You don’t “settle” a political issue by sweeping objections under the rug and imposing your view by diktat. You settle the issues by honest debate, by finding compromises and letting everyone be a little unhappy.
If abortion laws had been left to fifty state legislatures, as it should have been, each state’s laws would have reflected the social mores of the people living there. It would probably still be largely outlawed in the Bible Belt and considerably more available in the northeastern and Pacific areas of the United States. More importantly, though, everyone would have reached a local compromise that they could live with. It would not be pretty, it would not be rational, but it would have been democracy. If you can’t provide a logical explanation for a ruling, based on universally accepted concepts (even if the application of those concepts is subject to disagreement), it is incumbent on the judicial system to surrender the issue to the messier democratic process, which has the virtue of giving a much larger forum for competing points of view to be heard.
The Supreme Court is no longer perceived by many Americans to be an institution of intellectual discourse. It is thought to be a sort of superlegislature, where the result is what counts and not the reasoning the Court used to reach the decision. The ends are not supposed to justify the means in a democratic society. This separation of power from process and principle has not only replaced the Court’s moral and intellectual authority with mere political power, but it has also led to an unhealthy paranoia on the left, which projects its own behavior onto that of its opponents.
Ironically, Justice Blackmun had been subject to charges by leftwing critics of being an intellectual lightweight, but the very case which proved them correct also made him a liberal icon. Intelligence ceased to be a requirement to the left. That they now recognize the intelligence of a conservative jurist who has been unfairly maligned by them for twenty years is therefore a cause for celebration by everyone.
Thomas F. Berner
www.WeThePeopleBlog.net
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