Again, a struggle for the soul of the court


AFTER the Supreme Court decision in Planned Parenthood vs. Casey, Sarah Weddington and I discussed the outcome on television with Barbara Walters.

Ms. Walters seemed a bit nonplused that both of us were unhappy.

Since the court had both reaffirmed Roe vs. Wade's basic holding that abortion is a woman's constitutional right and upheld most of Pennsylvania's regulations of the exercise of that right, one of us, she thought, should have been smiling.

Instead, Ms. Weddington, the lawyer for "Jane Roe," announced a terrible defeat for women, which she predicted would be a powerful issue in the presidential campaign.

I grieved for the Constitution, whose continuing deformation is unlikely to swing a single vote in November.

Public discussion of the decision almost completely ignores the Constitution and focuses instead on abortion. Hence, the three who controlled the outcome -- Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter -- are called by the media "centrists" and "moderates."

They may be that on the political spectrum, but on a constitutional spectrum their joint opinion is more properly termed "radical."

The inescapable fact is that the Constitution contains not one word that can be tortured into the slightest relevance to abortion, one way or the other. That is a subject left, like most subjects, to democratic processes and the moral choice of the public.

Until 1973 the court was content to let the people and their elected representatives govern, but with Roe it usurped their democratic prerogatives.

"Usurped" is not too strong a word; the court offered no legal reasoning for taking the abortion issue from the people by making abortion a constitutional right. To this day it has offered none.

Along with Justices Harry A. Blackmun and John Paul Stevens, Justices O'Connor, Kennedy and Souter assert that the right to abortion arises from the due-process clause of the 14th Amendment, which forbids any state to deprive persons of "life, liberty, or property, without due process of law."

Though this guarantees fair process in the application of laws, many justices have treated the clause as if it guaranteed laws with substance which strikes them as fair.

Chief Justice Roger Taney began the misuse of due process in Dred Scott to invent a substantive right to own slaves; the court has never looked back. Taney found his power in the word "property."

Roe and Casey claim authority from the "liberty" mentioned in the clause. Neither word has any substantive meaning other than what the court chooses to give it.

The power assumed proved too seductive to be abandoned for a satisfaction so arid as sticking to the principles of the Constitution.

The joint opinion of the new three-justice coalition expressly rejects any such limit to judicial power:

"It is tempting, as a means of curbing the discretion of Federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual . . . by the express provisions" of the Bill of Rights. "But of course this Court has never accepted that view."

This is the usual defense of the court's habit of rewriting the Constitution; it is no more than an assertion that the court has trespassed upon the rights of democratic majorities for so long that it has established an easement, a permanent right of way, across those rights.

One suspects with Justice Antonin Scalia that the temptation was not very strong: "The Court's temptation is in the quite opposite and more natural direction -- towards systematically eliminating checks upon its own power; and it succumbs."

Justices O'Connor, Kennedy and Souter suggest that one or more of them might not have decided Roe the same way as an initial matter, but now are moved to reaffirm it by "principles of institutional integrity" and adherence to precedent.

Such adherence has never been important in constitutional cases -- since only the court can correct its past constitutional mistakes -- and seems out of place here because the joint opinion itself overrules all or almost all of the criteria Roe put in place.

"Institutional integrity" turns out to mean the court must not overturn a wrong decision if there has been angry opposition to it. Nothing is said of the possible perception that the court reaffirms such a decision because there has been angry support for it.

There being political forces on both sides, principles of institutional integrity would seem to counsel deciding the case on the merits.

But somehow reaffirming Roe is presented as the principled, even heroic, course. Justice Blackmun's opinion goes so far as to call the joint opinion an "act of personal courage." That is hard to fathom.

The joint opinion is intensely popular with just about everybody justices care about: The New York Times, the Washington Post, the three network-news programs, law school faculties and at least 90 percent of the people justices may meet at Washington dinner parties. That fact surely did not motivate the decision, but it does dispel any notion that the opinion took courage.

Where does this leave the court -- and us?

The court has entered a new era with the rise to effective control by what the Washington Post saw fit to call, one hopes ironically, a "center-right coalition." The group's approach is shown not only by Casey but by decisions such as Lee vs. Weisman, which destroyed the tradition of non-sectarian prayers at high school graduations in the name of preventing the "establishment of religion."

Justice Kennedy's majority decision, joined by Justices

O'Connor and Souter, among others, found government coercion in the fact that a teen-ager might feel peer pressure to stand with her classmates while the prayer was said. Justice Scalia's dissent used history to show that the minimal presence of religion in a public ceremony could not conceivably have been intended to be unconstitutional.

That contrast is likely to continue and, for the time being, an ahistorical and freehanded liberalism of the sort Casey and Weisman display will dominate.

No bloc votes as a unit all of the time. Moreover, Justice Byron R. White can be found now with the Blackmun-Stevens wing, now with the Scalia-Clarence Thomas wing.

Chief Justice William H. Rehnquist sides more often with Justices Scalia and Thomas but not uniformly.

The likelihood, therefore, is a fragmented, shifting and -- judging from the acrimony of the opinions -- unhappy court.

But on constitutional lifestyle issues, it will be a court given more to liberal activism than to adherence to the principles of the Constitution as originally understood.

That means the court will inevitably continue to be the center of a political struggle for control of the law.

Some conservatives have suggested that Casey removes yet another reason to vote for George Bush, but Mr. Bush did appoint Justice Thomas, and the president's rivals would appoint no one remotely similar.

Journalists, who are heavily pro-abortion, have reproved Mr. Bush and President Reagan for supposedly using a litmus test for nominations, but they have seemed completely silent as Gov. Bill Clinton has promised to appoint only those who agree with Justice Blackmun about Roe.

Should Governor Clinton be elected, we will get a liberal activist well to the left of the present coalition on every try. That would mean more Roes, more Weismans, more Caseys.

Ms. Weddington is right. Radical feminists will try to make a campaign issue of the fact that Casey upheld some regulation of abortion; they want abortion on demand.

Most Americans do not, which means, if he steps up to it, Mr. Bush can turn the issue, and ultimately the Supreme Court, his way.

Robert H. Bork, a Supreme Court nominee in 1987, is a legal scholar at the American Enterprise Institute.

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