Emanations and Residue, or, Am I Actually a Liberal?

Yeah, so. About those penumbrae.

I mentioned in a post eons ago that the ostensible constitutional right to abortion comes from a decision wherein the "right to privacy" was found in "emanations of penumbras" in various constitutional amendments (the fourteenth especially, I think). I mis-cited it; it was Justice William O. Douglas, not Harry Blackmun, and he was writing for the majority in Griswold v. Connecticut, the decision that legalized birth control--that is to say, prevented its illegalization. It was this decision that laid the groundwork for Roe v. Wade, and any number of other decisions.

In 2000, when I was a senior in high school, I acted as a justice in a Model Supreme Court, an event my school organized and believed to be the first of its kind. (I've yet to see any evidence to the contrary.) My particular Model Supreme Court heard Griswold v. Connecticut, and upon hearing the arguments that the student attorneys presented, we (a panel of three justices) had no choice but to rule in favor of the state. My history teacher, a liberal, congratulated me for demonstrating how tenuous even the Supreme Court's enforcement of our constitutional rights really is. And I have to say, in the last year or so I've started wondering if maybe the constitutional right to privacy doesn't actually exist.

Which doesn't mean that I don't think the right to privacy exists, or that the decisions that have resulted from that concept are by any means unethical; quite the contrary. But I'm wondering if the Supreme Court should ever have heard those cases at all, Griswold or Roe or Planned Parenthood v. Casey or anything that's followed. I think there may be other constitutional arguments to be made for all of them--equal protection under the Fourteenth Amendment extending to medical treatment, for example, taking into account the different bodily needs of men and women--but I'm wondering if the emanation of penumbras might have done a lot of long-term harm. The Burger and Warren courts, which made a lot of the decisions seen as most monumental today (Brown v. Board of Education, Roe v. Wade) are seen as "activist courts," which is generally taken to mean deviating from the Contstitution, interpreting it loosely to suit one's own political agenda. Now, let me put in here that I don't believe in strict constructionism (Scalia and Thomas are often seen as strict constructionists, adhering closely to the text of the Constitution)--that is to say, I don't believe it exists, not that I don't believe people should do it. It's not possible; it assumes that there's only one true, or strict, way to interpret the Constitution, and that's no truer of the Constitution than it is of any other piece of writing. To some degree, people read things as they want to read them; different, correct interpretations are almost always possible. But on the other hand, the fact that several interpretations can be right does not indicated that others can't be wrong. Some interpretations are simply outrageous, far enough from the text that you can reasonably believe the interpreter was operating simply from his (or her, but we've only had two "her"s on the Court so far) desire to push his own idea into the world, rather than combining his idea with its sources of inspiration in the text that's ostensibly being interpreted. So, while I don't believe strict constructionism exists, because I think it discounts the notion of interpretation (much like theatrical realism often fails to acknowledge, at least consciously, that putting on a play is automatically a level of unreality), I do believe judicial activism exists. I can understand why Clarence Thomas has a sign that reads "No Emanating of Penumbras, Please!" on his office wall; if I didn't so value what resulted from the emanating penumbrae (and if I were a Supreme Court Justice), I can totally see myself having such a sign.

I feel strongly, as anyone who reads this thing regulalaly has probably deduced, that both birth control and abortion need to be legal in this country. I do have ethical edginess about abortion, as I think most people do, and I can imagine a society in which I would not believe it needed to be legal, but this is not it. (Ironically, given the trajectory of these Supreme Court cases, one tenet of that imaginary society would be that there was no stigmatization whatsoever of birth control.) I think the pro-choice feminist movement often errs in trying to minimize the psychological effects of abortion, both on individual women and on society at large--I think that's often as uncompromising as the pro-life movement's claim that taking a life is socially detrimental and wrong, period, and that's the end of the discussion. But I don't feel that the conflict really comes down to a Constitutional issue; it strikes me as much more the territory of the legislature. Naturally, to place it there would carry its own risks. I have no interest in going back to the days of "Jane." But making it a question of the Supreme Court seems to me to allow an issue with a lot of legal nuances to rest on one bit of legal reasoning that's actually pretty far from the point.

But whether it "should" or not, it's quite possible that the issue will come before the Court upon the appointment of a new justice.

Sandra Day O'Connor's announcement of her retirement has been followed by the expected amount of sturm und drang, and it'll only get worse. I have to confess, I'm not that concerned about the actual nominee, because I think more often than not people with lifetime appointments will surprise you. Of the nine justices we have now, exactly five of them reliably vote on the same political line as the president who appointed them: Rehnquist (Nixon, though Reagan appointed him Chief Justice), Scalia (Reagan), Thomas (Bush the First), Ginsburg (Clinton), Breyer (Clinton). Stevens was appointed by Gerald Ford; the two major swing voters, O'Connor and Kennedy, were appointed by Reagan; Souter was appointed by Bush the First. You don't know. I have to say that at this point, I am at least as concerned about liberal watchdog groups having a kneejerk reaction to anyone Bush nominates as I am about who Bush might nominate. We have a tendency to think if conservative, then conservative justice, but as I hope I've shown above, that's not always true. There's a tremendous amount of unpredictability--even though the individual personalities of justices are becoming more important in the public eye, things are still very different when you don't have to think about being reelected--and a tremendous number of issues that the Court addresses, many more than a nominee can ever be questioned on. To call oneself a "strict constructionist" really doesn't answer many questions.

So regarding O'Connor, I honestly think that for the moment everybody needs to calm down. If Bush nominates Gonzalez and he actually manages to garner some support in the Senate, that, for example, might be a time to panic, given that the man has explicitly endorsed a number of coercive methodologies that explicitly violate the Constitution (see the Abu Ghraib memo). But there's a distinct possibility that we'll get through this relatively unscathed, and I'm willing to watch--to watch closely, but simply to watch--until I know what happens next.