Come Sunday -- Jan. 22 -- the most inflammatory decision in judicial history turns 33 years old. Americans still batter each other over Roe vs. Wade: Supporters are fretful lest the U.S. Supreme Court renege on its guarantee of a constitutional right to abort a pregnancy, opponents eager to make the supporters' frets come true.
Roe's persistence as a factor in our national life tells much about present-day cultural conditions. But, equally, it helps clarify issues like, well, doesn't Sam Alito deserve on his merits to sit on the Supreme Court?
Current thinking is that Alito's skepticism, to put it mildly, on Roe isn't proving central in the confirmation proceedings. If Sen. Dianne Feinstein of California, one of Roe's best Capitol Hill pals, can tell "Face the Nation" she foresees no die-in-the-last-ditch effort against Alito, it seems likely the nomination will prevail -- and maybe also that abortion, whether it was ever a make-or-break issue in judicial confirmations, certainly seems not to be at present.
The Roe anniversary reminds us pointedly, all the same, why judicial confirmation is one of the huge stories of our time. It's because of the high court's power to do exactly what the court of 33 years ago did -- give a mere policy judgment the status of constitutional law. Not by taking the issue to the people -- oh, no -- but just by deciding to do it.
Roe -- which overturned the abortion enactments of the 50 states and put forth a federal schema for dealing with the question -- is sometimes called a "ukase," meaning a decree by the czar, or a "diktat," the harsh consonants signifying lofty, Prussian-like disdain for insubordination. In fact, the metaphors bear some strong relationship to reality.
Here's this bunch of guys whom no one elected to anything. Some parties to a lawsuit have put before them a disputed notion, and magically, under the justices' hands, that notion -- the right to abortion -- becomes law, governing the way we lesser beings, we non-justices of the Supreme Court, live or perhaps don't live at all.
Oh, we don't agree with the court, whether fully or in part? WELL, SHUT UP! Such is the message supporters of Roe have worked successfully for 33 years to convey.
Congress shut up promptly enough. Efforts to reverse Roe by constitutional amendment -- the very hardest way of achieving anything -- have regularly died. It's a shame. Congress could send the amendment to the states and let them chew it over in a legislative setting. There would be up-or-down votes. To that degree, at least the voters -- a k a we, the people -- would have had some voice in the matter rather than just a signal from the high court to bow submissively.
George W. Law Professor: Obama's "Becoming The Very Danger The Constitution Was Designed To Avoid" | Greg Hengler