Irony and Judicial Politics
May 17, 2009
Via the Washington Post, a lesson in supreme court wrangling:
Questions on social issues in confirmation hearings have tended for the past 30 years to focus squarely on abortion, with partisans from both sides poring over a nominee’s writings and rulings and presidents typically denying that any “litmus test” was employed in the selection.
Same-sex marriage carries the same freighted potential to dominate a hearing, conservatives say.
(Utah), another GOP member of the Judiciary Committee, said conservatives are particularly eager to avoid a Supreme Court ruling akin to the 1973 Roe v. Wade decision, which legalized abortion nationwide and has divided the country ever since. “I don’t think members of the court, or any of us, ever want to see a decision like that again,” Hatch said. Obama assured the senator in a recent meeting that he will not pick a “radical” to replace Souter, but Hatch added: “Presidents always say that. That’s why we have the hearing process.”
This is one of those supremely weird moments in politics when obvious motivations lead to contrary results. The Republican wish to keep judicial activists off the court is grounded in their fear that the court would rule in favor of SSM advocates a la Roe. Given the course of recent events, this seems extremely unlikely. The court is simply too conservative to pass a ruling of that magnitude anytime in the near future, particularly given the conflict Roe has generated. And paired with the impossibility of passing a constitutional amendment banning SSM, blocking a Supreme Court nominee amounts to the demand that the federal judiciary stay uninvolved in what is increasingly becoming a state-by-state battle. This is, by my lights, probably the most genuinely conservative position the Republicans have ever been in on this issue: their own efforts at constitutional activism stymied, they must now fight merely to keep the issue from being decided at the national level. It will likely go, as it should go, to the states and their legislatures.
The irony is that this position is far more likely to benefit liberals in the long run. A major part of Republicans success on socially conservative issues has been the ossified character of Supreme Court decisions. Once a controversial decision has been made, the only way to overturn it is to restock the court with conservatives, a literally multi-generational project. This has been an enormous boon for Republicans, and as with abortion, so with gay marriage. Ensuring the Supreme Court does not rule in favor of gay marriage will prevent the opening of a new front on the culture war, and paired with the generational shift on this issue, will likely set the path to widespread (if not universal) recognition of the right to marry.