Trading places on Roe

Judge Samuel Alito’s smooth road to the Supreme Court hit a bump last week as a 1985 memo penned by him while at the Department of Justice surfaced. In that memo, Alito asked with regard to the then-pending case of Thornburgh v. American College of Obstetricians and Gynecologists, “What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?”

To the Democrats, this was the big “gotcha.” Instead of having to tolerate having yet another Supreme Court nominee evading questions about abortion, Democrats were practically gleeful about having Alito’s admission on paper. To Sen. Barbara Boxer (D-Cal.), the memo “raises very serious questions about whether Judge Alito has been sincere about his respect for the precedent of Roe v. Wade.”

Suddenly, we’ve got a fight on our hands.

But what’s odd about all of this is how the ideologues are reacting. Conservatives are trying to argue that the memo doesn’t indicate at all that Alito would overturn Roe while on the bench-almost as if they’re embarrassed that a conservative judge nominated by a conservative president would ever think such a thing! Edward Whelan argues that Alito was merely making the argument that DOJ was told to make by the White House. And, hey, Whelan reasons, Alito wasn’t really all that involved anyway! Just a peon, not a “key player.” No smoking Roe gun here.

On the other side of the aisle, though, the Left is busy wondering whether defending Roe is really a good idea anymore. Prof. Sanford Levinson called for an end to Roe in order to move the debate from the purview of judges to halls of the legislature. To him, “Roe [is] ‘the gift that keeps on giving’ inasmuch as it has served to send many good, decent, committed largely (though certainly not exclusively) working-class voters into the arms of a party [the Republicans] that works systematically against their material interests but is willing to pander to their serious value commitment to a ‘right to life.'”

And lefty columnist Richard Cohen is also on board with dropping the “bad decision,” arguing, “If the best we can say for [Roe] is that the end justifies the means, then we have not only lost the argument — but a bit of our soul as well.”

So, the Right is scared of a judge who actually argued against Roe, while the Left is starting to walk away from Roe altogether. How times have changed.

What’s perhaps most revealing about the current state of Roe is that even its defenders don’t bother trying to argue that the decision was a model of jurisprudence. Rather, the argument is typically like the one made by Prof. Jack Balkin: There’s too much resting on Roe to overturn it now, and besides, a judge who is anti-Roe is probably anti-gay, anti-freedom of speech, and all sorts of other terrible things.

Nevermind that a judge could easily be against Roe on jurisprudential grounds while being sympathetic to the right to an abortion, like I am. At one time, to argue against Roe meant being labeled a misogynistic troglodyte who probably wanted to return to segregation and Jim Crow laws. Now, even the Left admits that Roe is bad law. So now what?

How Alito responds to questions from eager Democrats will likely spell the future terms of debate on abortion and the law. Ultimately, the issue of abortion must be peeled away from the issue of upholding Roe before a real conclusion is possible. Democrats will struggle to hold them together. Alito’s challenge will be navigating between the two, without discrediting the argument against Roe or dismissing the right to an abortion.

One thing is for certain: Thirty-three years of Roe has proven that the Supreme Court has been unable to settle the abortion issue. To this day the decision remains the only real litmus test for Supreme Court nominees, while conceivably more important issues such as the extent of executive power during wartime go virtually unheeded. That is reason enough to let it go.

James N. Markels is an attorney and a regular columnist for Brainwash.