I began researching this article with a very narrow question. Will the election of John McCain lead to overturning Roe v Wade? My views of McCain, Roberts and the Robert's court have evolved as I examined the material available. I have also concluded that the selection of the next judges, and therefore the presidential election, is important for a number of reasons besides the abortion issue.
(Maybe I will post more on that later)
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If you share the view that too many restrictions have been placed on a woman's right to choose, then McCain is not your man.
(But you probably already knew that.)
If you are supporting McCain with the belief that he will appoint justices that will overturn Roe you may me disappointed. There is a very good chance Roe would survive even if McCain were to appoint one or more Supreme Court justices.
Currently there are five justices Breyer, Ginsburg, Kennedy, Stevens and Souter who support Roe v Wade. Stevens is 88 and is likely to be replaced during the first term of the next president . Ginsburg is 75 and iffy. Two member s of the court, Thomas and Scalia are on record opposing Roe.
Abortion supporters worry that a McCain appointee would tip the balance in favor of outlawing abortion. If one assumes that the two Bush (W) appointees, Roberts and Alito would vote to overturn Roe and/or that any McCain appointees would share that position then they have reason to worry.
A court with McCain appointees would likely support restrictions on abortion but it is not clear that they would go so far as to overturn Roe v Wade. There are several factors that indicate a McCain presidency would not be a slam dunk for the anti abortion forces.
- McCain is not an ideologue
McCain clearly believes that Roe v Wade should be overturned, but it is not one of his hot button issues. He has fought with his own party since at least 2000 over its abortion platform and sees the party as big enough to include pro choice and pro life members. He has expressed concern about the impact of an immediate reversal of Roe. He also parts company with most of his colleges on the issue of stem cell research.
John McCain.com - Human Dignity and the Sanctity of Life
You Tube - Re: McCain On Abortion (Unedited Full Quote)
You Tube McCain vs. Pro-Lifer - Nominees with a pro life record would likely not be confirmed by a Democratic Senate
Most pundits are predicting that the Democrats will be firmly in control of the Senate after the 2008 election. Given the party's consistent pro choice stance, McCain would have little hope of appointing any justice with pro life leanings.
On The Issues - Democratic Party on Abortion
Fox New.com - Democrats Hold Advantage Ahead of 2008 Senate Election
CNNPolitics.com - Numbers give Democrats edge in 2008 Senate races
NewsMax.com - Democrats Aiming for Full Control of Senate - Justices often stray from the party line once appointed
The most notable example of this is Warren burger. When President Eisenhower appointed Burger to the Supreme Court he said "He represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court…he has a national name for integrity, uprightness, and courage that, again, I believe we need on the Court." Years later he said Burger was "the biggest damned-fool mistake I ever made."
According to a 2007 Time article reporting a study published in the Northwestern University Law Review, Supreme Court justices are "ideological drifters" … "They apparently move from right to left, left to right and sometimes back again. And it's not just a Hugo Black, who dismayed liberals by rejecting a right to sexual privacy between married couples, or a Harry Blackmun, the conservative who came to write the landmark abortion case Roe v. Wade. It's virtually every Justice appointed since 1937."
It was a Nixon appointee, Harry Blackmun, who wrote Reo v Wade. In the current court it was a Bush (HW) appointee, in concert with two Regan appointees, O'Connor and Kennedy, who engineered the salvation of Roe v Wade when the court rendered the Casey decision.
Wikiquote - Earl Warren
Time - The Drifters
Gather - The Nine - It is unclear whether Roberts and Alito would support overturning Roe
Both men have pro life pedigrees. However, Roberts affirmed Roe during his confirmation hearings, saying it is "settled as a precedent of the court, entitled to respect under principles of stare decisis". Alito was less direct, saying "Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. The Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes--in Casey--based on stare decisis."
On The Issues - John Roberts on Abortion
On The Issues - Samuel Alito on Abortion - Roberts is not inclined to make sweeping decisions
According to a recent article in Time in 2006 Roberts said he "was worried about 'the personalization of judicial politics,' whereby people identify the rule of law with the way individual Justices vote in closely divided cases. Embracing as a model his greatest predecessor, John Marshall, Roberts said he would use his power to assign majority opinions to promote narrow decisions agreed to by wide, bipartisan majorities rather than by polarizing 5-4 splits. On an evenly divided court, Roberts felt he could convince the liberal and conservative camps that converging on narrow opinions was in everyone's interest."
While the 5-4 decisions have received more press, the Robert's Court has delivered a large number of unanimous or near unanimous decisions. In its most recent term only 17% of the cases were decided by 5-4 votes and cases upholding voter-ID requirements, execution by lethal injection, federal efforts to curb child pornography, and the detention of American citizens in Iraq were decided unanimously or by lopsided majorities. Roberts was in the majority in 90% of the cases.
NPR - Roberts' Court Produces More Unanimous Decisions
Time - The Supreme Court's Group Hug
Other References
New York Times - Important Supreme Court Decisions 2007 - 2008
Newsweek - The 2008 Bench Press
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Comments: 8
That might open up cans of worms that progressives don't want thus they avoid the argument which makes abortion opponents much more comfortable in their fight.
I do agree MM, the status quo is more likely than not no matter who gets elected regarding the balance of the court. I sure as hell hope we don't see another decision like Kelo though and that was a liberal decision.
The Constitution makes no provision for Roe v. Wade, but the Court's '73 ruling has withstood many tests. I doubt that trend will change.
ruling in The Nine which, according to Toobin, narrowly avoided effectively
overturning Roe v Wade.
If you look at the votes; Stevens, Souter, Ginsburg and Breyer vs Rehnquist, Scalia and Thomas, Charles is right. Kelo would appear to be a liberal decision. O'Connor, the swing voter in the Rehnquist court and Kennedy, the swing voter in the Roberts court, split their votes.