In Dicta

Sunday, July 24, 2005

Jeffrey Rosen article on the Supreme Court

"But even if the court is, in fact, transformed, the consequences might be far less severe than liberals imagine. To begin with, most of America's legal business does not involve the court at all. The justices decide very few cases -- an average of only 82 a year during the past 10 years -- and most of them are not politically divisive. Between 1994 and 2003, 36 percent of the court's opinions were unanimous, as opposed to only 21 percent that were decided by a 5-4 vote. What's more, if the Supreme Court overruled Roe v. Wade or its school-prayer decisions tomorrow, abortion wouldn't become illegal across America, and prayer wouldn't become mandatory. Instead, the states and Congress would have the power to regulate abortion or to allow prayer if they chose to do so. That means that the most controversial questions in American life would ultimately be settled in the court of public opinion, regardless of what the Supreme Court says.

Of course, some of the court's closest decisions involve hot-button issues, and they could indeed go the other way if the new justices follow in the path of Scalia and Thomas. The most immediate change might involve affirmative action: two years ago, O'Connor wrote a 5-4 majority opinion upholding affirmative action in law-school admissions; her successor might tilt the court in the opposite direction. But even if the court voted to strike down affirmative action in higher education, it is hardly obvious that affirmative action would end in a dramatic stroke. When the court, with O'Connor's blessing, questioned the constitutionality of affirmative action in public contracting in 1995, political support for affirmative action in the Clinton and Bush administrations and in Congress ensured that many federal contracting set-asides continued anyway, with only slight revisions.

The ultimate liberal nightmare is that the new Bush court might overturn Roe v. Wade. But if Rehnquist retires next, Bush will need three Supreme Court appointments, not two, to overturn Roe. For the sake of playing out the liberal nightmare, however, imagine that Roe, in fact, was overturned. The world still wouldn't come to an end for liberals. Since two-thirds of Americans in polls have long said that abortion should be legal during the first three months of pregnancy, only the most conservative states -- Louisiana and Utah, for example -- might try to pass new restrictions on early-term abortions. And in the event that a handful of states succeed in passing new early-term bans, or reviving old ones, the national backlash could split the G.O.P. apart at the seams, causing sizable numbers of pro-choice Republicans to desert their party. Karl Rove understands this, and when asked whether Roe should be overturned, he has dodged the question."

In this week's New York Times Magazine.

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