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.

17 thoughts on “A peek backstage”

  1. Solution: elect more
    Solution: elect more conservative legislators, and thereby change the dynamic of the confirmation process.

    If this is not possible—if it turns out that conservatism is a minority viewpoint—then we should do what we can to arrest or at least partially correct the slide into extreme liberalism. This might mean making peace with the neocons and socially conservative libertarians. Insisting on doctrinal purity, and hoping that the “people who are well-placed and influential nationally” will eventually see the light, is a losing strategy.

  2. My basic point is not that
    My basic point is not that an effort to persuade the editorial board of the New York Times or the deans of the top 50 law schools is the key to victory, but that there is no practical political strategy that will give us many near-term victories.

    Advanced liberalism is a comprehensive system based on a particular fundamental understanding of knowledge and reality. As such it resists radical change and has a great deal of resilience. Even if the traditionalist Right (i.e., people who are neither left-wing ideologues nor adrift) do manage to elect a president or congress their guys will seem like unacceptable alien intruders. Other parts of the system (the media, political activists, experts and educators, civil servants, other parts of the legal system) will work together to isolate them, make them ineffectual, coopt them, and make sure the same thing can’t happen again.

    So it seems to me the primary need is to confront liberalism and overthrow it in mind and spirit. Every bit counts, so I agree the effort to elect conservative legislators is good. I also agree that to the extent there’s truly common ground with neocons, non-paleo libertarians and so on it’s good to cooperate. It seems to me though that the most important thing is to clarify, publicize and insist on principle. As long as the views of the traditionalist Right are foreign to public discussion the practical goals of the traditionalist Right aren’t likely to get anywhere.

  3. “Maybe the episode shows
    “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.” I’ve been saying for a long time that the overall trend from the bench has been to aggrandize more power to judges, specifically, and to lawyers generally, because all judges are lawyers, too.

  4. “Insist on principle”.
    “Insist on principle”. Isn’t that often just another way of saying “insist on doctrinal purity”?

    Let’s come to the point. A lot of traditionalists are saying they will vote against Bush in the coming election, because he has “betrayed” them on one point or another. I think this is foolish. Despite his new world order, big government leanings, Bush is far more friendly to traditional values and culture than Kerry will ever be. If you want a country in which traditionalist views will have a respected place in public discussion, I don’t think you’ll get it from the Democrats. We should do everything we can to deny them power, even if that means holding our nose and voting for a “neocon traitor”.

  5. Betrayal isn’t the point. I
    Betrayal isn’t the point. I don’t see that GWB has claimed to be anything other than what he is or that he’s acted at odds with his stated principles. The question is how to proceed most effectively given where we are. At this point people with coherent traditionalist positions aren’t going to affect politics by turning out in their millions and putting their man in office. They might affect it by presenting their views clearly and forcefully so they become known as a serious alternative to the current direction of public life based on a serious understanding of man and the world. It seems to me that voting for some third party would do more for that than falling in line behind GWB.

  6. Jim, traditionalist
    Jim, traditionalist conservatives have *already* presented their views clearly and forcefully. I have at least two whole shelves in my library filled with their clear and forceful statements. Many of your readers have even larger libraries of this stuff. It hasn’t made any difference yet, so what makes you think that one more such statement will?

    The problem is, you seem to think the outcome will be decided by intellectual discussion. It won’t, you know. The truth is that these are matters of power politics, of practical alliances and compromise.

    The left understands the tactic of Divide and Conquer. Do you?

  7. Charlie wrote, “The left
    Charlie wrote, “The left understands the tactic of Divide and Conquer. Do you?”

    Lemmings also understand a tactic, the one of blindly following their leader over a cliff.

    I don’t know who’s supposed to wind up “divided and conquered” by our casting our votes for Bush. Are we going to divide the Jim Jeffords wing of the GOP from the Hillary wing of the Dems or something?

    Voting for the lesser of two evils makes sense only up to a point, beyond which it no longer applies as a principle because both choices are one hundred percent intolerable. If the white Rhodesian farmers were given the option of voting either for Robert Mugabe or Idi Amin Dada; if the Israelis in their next election were presented with the option of voting either for Yassir Arafat or Osama bin Laden as prime minister; if the Ukrainians in the 1930s had been given the option of voting either for Joseph Stalin or Lavrenti Beria, should the white farmers, or the Israelis, or the Ukrainians go through some sort of mental calculation in an effort to figure out which evil was “the lesser,” and vote for that one? Of course not. They’d face facts at that point, and say to each other, “Well, sadly the system hasn’t given us an acceptable choice. We’re voting for neither.”

  8. To Unadorned:

    To Unadorned:

    You misunderstood me. It isn’t that we would divide the Democrats by voting for Bush, but that the Democrats will have divided us if we vote against him.

    I do not believe the choice between Bush and Kerry is as pointless as the examples you mention. As I told Jim, I think a Bush administration is more likely to foster an environment in which traditionalist conservatism will get a respectful hearing.

    If Kerry wins—and I think he will if conservatives abstain or defect to a third party—the mainstream press will spin it as a repudiation, not of neoconservatism, but of conservatism. Like it or not, they’re painting Bush as our representative.

    I honestly don’t see how acquiescing in a Kerry win is an effective way to address the problems with the Supreme Court described in Jim’s article.

  9. I am, of course, in full
    I am, of course, in full agreement with Jim’s statement that “the primary need is to confront liberalism and overthrow it in mind and spirit.” I simply don’t agree that a Kerry win will create the conditions most conducive to that result.

  10. Practical politics exists
    Practical politics exists within a setting of what people think makes sense. If you think the setting of what most people think makes sense is wrong and leaves out important things then your best shot at making a practical contribution is changing that setting by insisting on the things that are being left out. Trads have written books, and it’s good they do so, but I think it’s also useful for them to maintain a visible presence in other settings, like political campaigns. That widens the spectrum of what’s possible in the minds of people who don’t happen to read Russell Kirk and take him seriously, which is also a good thing.

    I should add that one of the basic features of practical politics in a two-party system is triangulation. What’s wrong with reminding Republicans they don’t have an eternal lock on the rightwing vote? Otherwise the main practical problem for a Republican politician will be how to appeal to the center and center-left.

  11. Weren’t we discussing
    Weren’t we discussing reality just a little while ago?

    In this *two* party system, as long as the Democrats are controlled by their left wing, yes, I’m afraid the Republicans *do* have a lock on the conservative vote.

    A conservative third party will not gain a plurality. The Democrats are united against Bush, and all the polls indicate a tight race. Kerry should get at least 40-45% of the vote. So voting anything but Republican will be to elect Kerry. Please explain how that outcome will address the problems with the Supreme Court and other issues you care about. It seems to me that it will only make things worse.

    Enough of this foolishness. Straighten up and face the enemy, not our allies!

  12. Charlie writes,

    “In this
    Charlie writes,

    “In this *two* party system, as long as the Democrats are controlled by their left wing, yes, I’m afraid the Republicans *do* have a lock on the conservative vote.”

    Not if the Republicans turn into left-wing Democrats they don’t have any lock—and a left-wing Democrat is exactly what Bush has turned into (or always was, more likely). There’ll be no presidential candidate for “conservatives” to rationally vote for in November. Karl Rove and George Bush are left-wingers. Conservatives certainly didn’t want this heartbreaking situation but they find themselves in it and must face it.

    Charlie asks,

    “Please explain how [a Kerry victory] will address the problems … and … issues you care about.”

    Charlie, please explain how a Bush victory would.

    Charlie admonishes us to:

    “Straighten up and face the enemy, not our allies!”

    Since when are George Bush and Karl Rove allies? They’re the political enemy, as much as the Dems are.

    The entire Bush family of incompetents has been a curse on the United States, a disaster.

  13. So voting anything but
    So voting anything but Republican will be to elect Kerry.

    Not quite—there are states in which either Bush or Kerry pretty much has it locked up. For those living in such states, I don’t see any harm in voting for a conservative third party, and it would send a message that there are conservatives out there dissatisfied with Bush, a message that I think needs to be sent.

    Bush’s support of a radical amnesty/guest worker program (when a crackdown on illegal immigration and a great reduction in legal unskilled immigration are critical), his support of the radically expensive prescription drug bill (in the face of extreme pre-drug benefit Medicare and Social Security costs in the future, no less), and his allowing large domestic discretionary spending increases are simply unacceptable. His quasi-support of affirmative action, through nominally race-neutral programs (including, but I do not think limited to) the top 10% program in Texas and the top 20% program in Florida, is not very appealing either, especially since Bush has positioned himself with conservatives as supposedly against affirmative action. His Utopian belief that Iraq will become a democracy is delusional, and his denouncing those who see democracy in the Middle East as unrealistic as “condescending” is simply disgusting.

  14. Any viewpoint which fails to
    Any viewpoint which fails to see any important difference between Bush and Kerry is so far removed from commonsense reality that it will be very difficult to convince anyone that it is “a serious alternative”.

  15. There are certainly
    There are certainly significant differences between Bush and Kerry. Kerry wants a bigger prescription drug program, a stronger amnesty bill, and universal health care. However, this does not take away from the fact that Bush leaves much to be desired and is dangerous in many ways himself (though if I lived in a state where the vote was likely to be reasonably close, I might have to hold my nose and vote for Bush rather than vote third party).

    Also, if the neocons, RiNOs, and mindless Republican partisans put up a GWB-like candidate in 2008, forget it. I don’t care if Hillary is running—I would hope that any further GWB-like Republican candidates lose. I only support voting for Bush in electorally close states as a stopgap for the next four years, but I refuse to give ANY sort of support for the Republican party permanently becoming the party of mass illegal and unskilled immigration, big new entitlements, and gross fiscal irresponsibility.

  16. The enemy isn’t specifically
    The enemy isn’t specifically the Democrats, though. It was three Republican Supreme Court justices who got together to persuade a fourth, the not-very-talented Anthony Kennedy, to come around to a view that after all is held by every respectable legal authority in America.

  17. The lesser of two evils
    The lesser of two evils theory of voting means that the Republican Party can move as far left as that spot on the political spectrum that is just a teensy bit to the right of John Kerry and Hillary Clinton and still have our vote.

    Does Charlie see any problems with this?


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