Not exactly Attila the Hun

July 23, 2005

Guest Post by Morbo

Last week I speculated that President George W. Bush would nominate Attila the Hun to the Supreme Court — meaning a nominee progressives would find hard to tolerate. My money was riding on federal appeals court Judge Edith Jones.

Bush threw us a curve and nominated another appeals court judge, John G. Roberts, instead. While not exactly Attila the Hun, Roberts, who has been sitting on the U.S. Court of Appeals for the District of Columbia for less than two years, isn’t likely to be another Sandra Day O’Connor-style moderate. He’s essentially a long-time member of the Washington conservative establishment. Having been a loyal foot soldier for the right wing all of these years, with service in the Reagan and first Bush administrations, Roberts is now being rewarded with a seat on the Supreme Court.

As deputy solicitor general under Kenneth Starr, Roberts was a political appointee who helped craft administration arguments in several high-profile cases. He helped write legal briefs calling for Roe v. Wade to be overturned outright and recommended the high court scrap several decades of jurisprudence upholding the separation of church and state. Roberts would like to see more government recognition of religion in public life — after all, there’s hardly any right now.

The right wing is pleased with the nomination, and I expect the usual game will unfold from here: Under questioning by the Senate Judiciary Committee, Roberts will decline to answer certain questions or answer them in such a way that he sounds like a pleasant moderate. Liberal interest groups will oppose him, but barring anything like a bimbo eruption, I expect Roberts will be confirmed with significant Democratic support. Once on the high court, he’ll do whatever he damn well pleases.

I guess we have to go through the motions of opposition, but it feels somewhat futile. Sadly, we in the progressive community had one chance to block a nominee like John Roberts. It came last November, and we lost.

I probably am jumping off the deep end that there is no hope for me but….

I have the feeling that Scalia and Thomas AND Roberts not only think that Roe should be overturned but probably think that abortion is murder and should be outlawed.

I get this feeling about Roberts because it appears to be the view of his wife and no one has any evidence that he disagrees with the strong belief held by his wife.

Imagine what would happen if Stevens and Reinquist retire and get replaced by two other people who think the way that I fear Roberts does. We would not just have the overturning of Roe; we would have abortion outlawed. It would sure wake people up about the power of the Supreme Court.

Please tell me I am nuts. At least I hope I am……

  • Neil, you’re not nuts, but you may be overstating the power of the Court. Conservative justices can’t ban a medical procedure. They can overturn Roe, and allow Congress to ban the medical procedure.

  • Ali G,

    If you’ve read this blog and the comments for the past several months, there has been a lively debate on what would happen if/when the SCOTUS overturns Roe. The consequences would be serious, and could be very unexpected depending on what rationale is used by the Court to do so. After all, Roe’s result was made possible by Griswold v. Connecticutt in 1969, that upheld a right of privacy implicit in the Bill of Rights, which the SCOTUS ruled permits a woman to get birth control information and contraceptives free from governmental interference.

    If Roe is overturned, then likely so would Griswold and any right to privacy that we have in our private lives, including any qaint notion that our “homes are our castles.” What would that mean? Obviously, state laws would control whether abortions were available and on what terms, if any, and may even be criminalized — even to the point of being legislated as “murder” — for the woman, the doctor, and anyone who assists in procuring the abortion; no access to contraceptives and birth control information; criminalization of “sodomy,” whether between heterosexuals — even husbands with their wives — or homsexual; no “partner” benefits at work or in end of life decisions; and more that cannot yet be imagined.

    Based on the SCOTUS’ recent decision upholding the federal Controlled Substances Act to overrule California’s referendum-enacted medical marijuana law, I would fully expect Congress to step in immediately after Roe was overtuned. Congress, being in the thrall and control of the Christian fundamentalists, will not just outlaw abortion for all 50 states, but would criminalize it, too. The Congress will take the SCOTUS action as a green light to truly regulate our personal conduct in a way that Joe McCarthy and J. Edgar Hoover could only dream about. And, once the Congress’ actions were challenged in the courts, the SCOTUS will again say that federal law trumps state laws on these issues, and we are all then well and truly fucked like never before.

    There are some on the progressive left, and here on this blog too, who assert that Roe’s demise will eventually be the end of the Rethug party, as the consequences to most Americans will be such a shock that it will finally spur them to action and throw the Rethug bastards out of elected office. But while I concede that such actions are possible, until then there will be untold misery and suffering as a result of the loss of our right to privacy. Further, the SCOTUS justices serve for life without further vote by anyone (discounting to the point of absurdity the possiblity of removal from office through the use of the impeachment/conviction mechanism). So even with “different” and more “people friendly” members of Congress (read “Dems”) to turn back the clock to where we are today, we will still likely have the same Neanderthals on the SCOTUS that overturned Roe and upheld Congress’ radical regualtion of our private conduct — and any efforts to protect “privacy” by a newly-enlightened Congress may be similarly tossed out by the SCOTUS.

    THEN where will go? We can try to amend the Constitution to insert explict language assuring all Americans of privacy rights, but that’s iffy at best.

    We have a better chance to avoid the privacy doomsday scenario if we can get Bush and Cheney impeached and convicted; get most of the White House staff indicted and convicted; and scare the shit out of the rest of the Rethugs now in control of Congres to actually do the PEOPLE’s business and not that of their radical fundamental and corporate enablers and their lobbyists. That would mean that Congress would conduct real oversight hearings; allow Dems to have a real ability to substantively represent their constituants (after all, the 44 Dems represent more millions of Americans than do the 55 Rethugs); and for them to have an epiphany and thereby realize that they have caused and allowed the desecration of the budget, of the poor, of Social Security, of the environment, of Iraq and all of our allies, and of the truth.

    Yeah, that’ll do the trick! Come to think of it, neil wilson, maybe I’m nuts, too ….

  • AL-

    I like your posts and your thoughtfulness, but there are a few errors here.

    criminalization of “sodomy,” whether between heterosexuals — even husbands with their wives — or homosexual

    Sodomy is currently illegal in many states, not withstanding the Texas ruling. While this may change, issues like sodomy will continue to be legislated for and against. While I disagree with outlawing consensual private behavior by adults in theory, there are many examples of the like that we are all better off having illegal. Bestiality, incest and bigamy pop to mind.

    and any efforts to protect “privacy” by a newly-enlightened Congress may be similarly tossed out by the SCOTUS.

    Well, what the SCOTUS would have tossed is essentially the right of Congress to legislate against privacy. That is, they were not able to legislate against (or, more accurately, “about�) our privacy under Roe, but once tossed they could. So Congress could easily explicitly allow abortion and/or legislate privacy (I’d be interested to see what this type of legislation would look like). Overturning Roe wouldn’t really outlaw anything explicitly, just allow Congress to do so.

    We can try to amend the Constitution to insert explict [sic] language assuring all Americans of privacy rights, but that’s iffy at best.

    Not a bad idea, actually.

  • Eadie. You surprise me. Do you really mean this:

    “While I disagree with outlawing consensual private behavior by adults in theory, there are many examples of the like that we are all better off having illegal. Bestiality, incest and bigamy pop to mind.”

    Yes, beastiality because it is a form of animal abuse. And maybe bigamy, in the sense that the state needn’t sanctify such a contractual arrangement for purposes of the usual benefits
    accorded marriage. But to outlaw such a contract in general?
    Shouldn’t consenting adults be free to enter into contractual
    arrangements, even if they don’t qualify as “marriage?” Can’t
    homosexuals exchange vows, have them notarized and
    enforced as a matter of law, even if the state does not
    recognize them as marital contracts?

    And lastly, do you really mean that the government should
    have the right to criminalize sexual acts between consenting
    adults that cause no harm to themselves, or society at
    large?

    Tell me you don’t mean that.

  • This might be gone by the time anyone would read it, but I’ll comment none the less.

    Simply put, I’m not sure. I have always been a stay-out-of-our-bedroom “liberal�—and I scare-quote liberal there because this is actually a traditionally conservative position in many ways—but there is some point wherein behavior affects society and society can, and probably should, regulate such behavior. The question is, can what happens in our bedroom truly negatively and meaningfully affect society?

    One immediate question would be, what qualifies someone as an adult? We legislate that age, effectively saying, “everyone on this side of the line can do x, everyone on that side can’t.� So, reasonably, we dictate personal behavior among consenting humans who do not meet our arbitrary threshold of accountability. This is to protect people who, theoretically, aren’t ready to consent to certain behavior. But of course there are people ready to make informed and reasonable (i.e., “adult�) decisions at 15, and there are those who aren’t ready at 40. This is arbitrary but reasonable, if that’s possible, and while most reasonable people could disagree over the particular ages chosen, most wouldn’t argue with the idea in general.

    But even as we set arbitrary age limits, we recognize that there are certain particular relationships that lend themselves to exploitation—parent child, teacher student, doctor patient, psychiatrist and client, etc.—and we try to limit to some degree the ability of those people in the dominant position to negatively (generally that means sexually) influence the person(s) in the receiving position. We recognize that being an “adult� does not always protect us from being victims, even in consenting relationships. (As an interesting result of such thinking, some rape activists have tried to criminalize sex with an intoxicated woman, arguing there is no consent when a person is drunk. I don’t think they care if the guy is drunk.)

    Add to this the question of “privacy.� We tend to conceptualize this as our home or bedroom, but any private club would qualify. So there is ample ability to bring unsuspecting or otherwise unprepared individuals into a private environment.

    Finally, consider the incest question. Should brothers and sisters marry and have children? This was originally settled based on genetics—the trend to degrade the gene pool and the horrific results—although at that time they didn’t have an understanding of genetics, only the results. Now, the basic premise “stay-out-of-our-bedroom� allows for incest, but the results are, in fact, something I would be reasonably concerned about (or, rather, the affect this would have on children and our gene pool).

    The result of all this is not to say we should outlaw private, consensual behavior willy-nilly, but just to admit that there are consenting adult activities carried on in private that negatively and meaningfully affect society. Having done so, and being interested in keeping the legislation of morality out of our private lives (as I am), we need to come up with a better argument that “you can’t tell me what to do.�

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