Monday, October 11, 2004

Dread Scott

Slate--what would I do without Slate?--offers more evidence that Bush's odd Dred Scott reference in the debate was code for the anti-abortion movement, which often likens Roe v. Wade to Dred Scott. It's quite clever, really--reaching out to the social conservatives without sending a signal to moderates. Unfortunately, Bush's overall answer to the question of what kind of judges he would appoint was so rambling--Kerry's wasn't much better--that his reference to the infamous slavery case seemed particularly bizarre and invited much scrutiny.

It is important to note that not every person who thinks Roe v. Wade was a bad decision opposes legalized abortion. The court in Roe v. Wade could merely have ruled on the Texas law in the case before them, rather than issuing a sweeping ruling that negated every state's abortion laws. By the time Roe was decided, many states were relaxing their abortion laws--the most oft-cited example is California, where Republican governor and future president Ronald Reagan signed of the nation's most liberal abortion law. A more narrow decision would have sent a signal to other states that their abortion laws might not pass constitutional muster, but it at least would have allowed the question to be decided by elected officials. Instead, the court ended all debate, leaving abortion opponents feeling alienated and voiceless. The rest is history.


Anonymous Anonymous said...

Looking at the blogosphere, it's amazing to me to see so many laymen taking your view (Dred Scott was a coded reference to Roe v. Wade), and so many jurists taking a longer view on the strict constitutionalist issue of picking judges.

I'll spatchcock AGAIN Scalia's use of Dred Scott (he seems to be an admirer of Taney, with a twist. He believes that if the Constitution did not list certain rights, then state(s) has/have the right to limit those rights through legislation, or add more freedoms, through legislation). Here's one of his opinions, and I believe you can see the use of Dred Scott in its fullest sense. I even chose an abortion case for you.

I could get into a long and detailed dissertation on substantive due process, but why? You see it as Roe v. Wade only, so I'll end up wasting time.

I would simply suggest that rhetoric this lyrical, by a dissenting justice, goes beyond a coded reference to Roe v. Wade and might, just might, signal a deeper perspective about how our judicial system should be ordered.

"It is no more realistic for us in this case, than it was for him in that, to think that an issue of the sort they both involved--an issue involving life and death, freedom and subjugation--can be "speedily and finally settled" by the Supreme Court, as President James Buchanan in hisinaugural address said the issue of slavery in the territories would be. See Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 126 (1989). Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."

10:44 AM

Anonymous Anonymous said...

I did a quick google to get beyond my lawyerly leanings on this, and found a nifty exegesis of Scalia's (and Bush's) notion of Dred Scott as befitted the sodomy cases, when several law professors compared Scalia's dissent to Dred Scott.

I don't happen to agree with Scalia on nearly any case he reads, but I love the way he reads them, and I grudgingly admit that often his interpretation is more logically coherent than mine.

You also should know that I Shephardized Scalia's use of Dred Scott. He invariably weighs in to BACK THE DISSENT IN THE SCOTT CASE and use it to curb the power of the Supreme Court en banc.

Gosh, do you think Slate might have actually Shephardized some cases here?

10:52 AM

Blogger Jonathan Potts said...

Again--and you are right, there isn't much point after this in further discussion--who do you think President Bush is trying to reach when he goes on national television in a debate? Members of the conservative legal establishment or the mass of people he needs to vote for him? I don't think John Kerry was trying to address his answer to the Laurence Tribes of the world.

10:57 AM

Anonymous Anonymous said...

By the way, I'll let you in on a little secret. If you wanted to see another Justice that used Dred Scott to advance more leftie purposes (ones, by the way, I wholeheartedly endorse), I would suggest a tad bit of reading on the life and legend of William Brennan.

10:58 AM

Anonymous Anonymous said...

I'm going to make the suggestion, again, that there were several points to Bush's reference to Dred Scott:

1. My hunch is that he had recently read a book, biography, etc., that referenced Dred Scott, and used it in the heat of the moment;

2. An audience of Missourians would know more about the case than most people across the country because they're required to study it in school. Bush's use of the case was no different, then, than Edwards' very fine use of stats about Cleveland's jobless;

3. African-Americans. Certainly, this case resonates with them more than most people. I'm going out on a limb to suggest that most African-Americans would be against Dred Scott. Don't forget that Bush likely could draw up to 15 percent of all black voters, especially if he keys up religious issues, such as...

4. Abortion. I don't discount the veiled reference for political gain, but I bet Bush was really voicing...

5. His support for strict constitutionalists, or "originalists," for court appointments. Dred Scott, as I've illustrated, has NOT been embraced by Scalia (your first reference), except for the dissents in the case. I believe Bush and Scalia do read Dred Scott the same way, as an activist case that LIMITED rights (just as they would be opposed to cases that EXPANDED rights) beyond the compass of the Constitution, unless backstopped by representative legislation without veto.

I tend to believe Bush is smarter than most people give him credit, although every time I've talked to him he's come off as dumb and dumber. I can say that when I've spoken to Kerry, he's bright and friendly, far from the wooden brahmin he's portrayed as, but Mickey Kaus can't always be wrong.

Nader, who I've always admired, has consistently come across as a stolid prick in person.

But that's the way it goes. Hillary always seems chilly, but her policy work is brilliant. Lieberman doesn't campaign well, but he's very bright and articulate. Gore came off as kind of dense, but when you read his written policy work, it's first-rate.

11:45 AM

Anonymous Anonymous said...

You know, J, I went to Slate to look at the damned story. It wasn't by Dahlia Littwack, Slate's very fine court reporter! It was by the hack political beat reporter!

Damn it, J, you should simply repackage my stuff and send it to Slate. It actually included a great deal of legal research and nuanced thought. All Noah did was google some crap.

I want royalties for this!

2:59 PM

Blogger Jonathan Potts said...

I don't know if a bank will cash checks written to "Anonymous."

3:44 PM


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