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A peek backstage

It turns out that upwardly-mobile Republican Catholic Justice Kennedy was going to vote to overturn Roe v. Wade in 1992, but ended up casting the decisive pro-Roe vote. It seems that Blackmun, O’Connor and Souter brought him around by working him over in private.Because of the switch, the Casey decision ended up reaffirming Roe. The basis of the decision was “stare decisis“—standing by what’s already been decided. The Court said they wouldn’t reverse what they had done because once they have spoken on an important issue public controversy should come to an end: “the belief [of the American people] in themselves as [a people who ‘aspire to live according to the rule of law’] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.”One of the many odd points about Casey is that it also announced as central to liberty a “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” So even though we can understand ourselves only by accepting without reserve the power of the Supreme Court to decide issues like abortion, each of us individually retains the right to decide the meaning of everything whatever. Both public institutions and individuals have unlimited power, it’s only objective moral law that’s powerless.Maybe the episode shows something about how the Supreme Court works as an institution, that it acts to maximize its influence and it represents what’s respected among people who are well-placed and influential nationally. For those reasons it will always tend to promote centralization and the replacement of traditional and informal institutions by rationalized and bureaucratic ones. It will be very difficult to change the overall result by changing the membership of the Court. To get confirmed a conservative normally has to be a bit fuzzy on principle and much more concerned with “listening” and “learning,” which as a practical matter mean fitting in with the dominant trend and voting institutional and class identity rather than supposed convictions—especially on important issues where pressure can be brought to bear. Kennedy could get confirmed where Bork could not. Someone like Scalia is always going to be the exception.

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