Super-duper prevarication

Posted: Jan 11, 2006 12:05 AM

How many times does someone have to repeat a falsehood before it becomes true?

 The answer, of course, is that no matter how many times someone repeats a falsehood, it never becomes true.

 This principle holds even for the U.S. Supreme Court. A majority of the court, for example, could declare that gold is lead. But that wouldn't make it true.

 The court could issue opinion after opinion reaffirming its determination that gold is lead. But the repetition would not affect the reverse alchemy the court purported to perceive. Gold would remain gold.

 Now, the confirmation hearings for Associate Justice-nominee Samuel Alito demonstrate that, for Senate Judiciary Chairman Arlen Specter, there is a second question that must be considered when it is indeed the Supreme Court that has repeatedly declared a falsehood.

 The question is: How many times must a majority of the court repeat the falsehood before it becomes binding on all future justices?

 The falsehood repeated by the Supreme Court that Specter would like to preserve is not that lead is gold. It is that the 14th Amendment created a right to kill an unborn child. This so-called "right" was first discovered by seven members of the Supreme Court in the 1973 Roe v. Wade decision. It was immediately exposed as a falsehood by the late William Rehnquist, then an associate justice, who pointed out in a dissent that the abortion-limiting laws of 21 states, including the Texas law specifically addressed in Roe, had been in force before ratification of the 14th Amendment and had remained in force for more than 100 years after ratification.

 Obviously, the seven justices who voted for Roe had little regard for the longstanding "precedent" established by these more-than-a-century-old state laws.

 But now, Specter suggests, the relevant question for a justice is not whether Roe is true. It is whether it has become a "super precedent" that cannot be reversed because it has survived a mere 33 years.

 Specter started Tuesday's confirmation hearing for Judge Alito with a virtual replay of a line of questioning he used in September at the confirmation hearings for Chief Justice Roberts.

 As he had with Roberts, Specter asked Alito a series of questions about the 1992 Planned Parenthood v. Casey decision, in which Justices Sandra Day O'Connor, Anthony Kennedy and David Souter argued that the basic holding of Roe -- that abortion is a "right" -- should be maintained not because it is true, but because the court had claimed that it was true (up to that point) for 19 years.

 Specter quoted a remarkably cynical statement Justices O'Connor, Kennedy and Souter made in Casey. "After nearly 20 years of litigation in Roe's wake," they wrote, "we are satisfied that the immediate question is not the soundness of Roe's resolution, but the precedential force that must be accorded its holding."

 Since Roe, Specter told Alito, the Supreme Court has issued 38 decisions relying on it. He even had his aides bring into the hearing room multiple copies of a large chart (also used in the Roberts hearings) inscribed with the titles of all 38 cases. The charts were strategically positioned around the room so few camera angles aimed at Alito or at the panel of senators could evade them.

 Nonetheless, Alito, like Roberts before him, evaded giving Specter an unambiguous answer about Roe and Casey.

 When Specter asked if the "legitimacy" of the court might be injured "if Roe were overturned," Alito countered: "I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law."

 When Specter reminded Alito that Casey "separates out the original soundness of Roe, which had been criticized, and then lays emphasis on the precedential value," Alito conceded, "There needs to be a special justification for overruling a prior precedent."

 But when Specter asked Alito whether he agreed that "Casey is a super-precedent or a super-stare decisis," Alito stopped him with a quip. "I personally would not get into categorizing precedents as super-precedents or super-duper-precedents," said Alito. "Any sort of categorization like that sort of reminds me of the size of the laundry detergent in the supermarket."

 Alito concluded by clearly leaving the door open to overturning Roe, noting that stare decisis was not "an inexorable command."

 Observers on the right hope -- and on the left fear -- that once confirmed, Alito will act on the realization that what the Supreme Court lied about in Roe was far more valuable than gold. It was the meaning of our Constitution, and the sanctity of life.