Last week in the Herald - the High Court

In last week's Arlington, VA Catholic Herald, Russell Shaw adds his analysis to the question of Supreme Court vacancies and the likely retirement of Mr. Justice Stevens. Today's Law.com has Tony Mauro's piece in the National Law Journal about White House preparations for such a vacancy. Clearly something is in the air. Of course, no one makes mention of Scalia and Thomas and their health, which is apparently excellent (although you can never tell with men of a certain age) and it is certain that neither would retire voluntarily during a Democratic presidency.

Shaw looks at the traditional swing vote breakdown, correctly surmising that Kennedy is the swing vote in many cases, especially those issues that social conservatives care so much about - gay marriage and abortion (which are only a fraction of the work of the Court - most of their work is decided on a near unanimous basis on uninteresting topics such as federal employee law and complex regulatory issues). He is correct that Kennedy is at the center, however he ignores how the center has grown.

One could say that the Chief Justice, Associate Justice Alito and Associate Justice Sotomayor are also centrist conservative Catholics, given their jurisprudence on abortion. Sotomayor refused to nix the Mexico City policy, for example, when she had the chance. I doubt Associate Justice Ginsburg would have done the same if she had gotten the same case at the appellate level. Additionally, on Partial Birth Abortion, Alito and Roberts joined Kennedy in upholding the law based on the Commerce Clause, not agreeing with Antonin Scalia and Clarence Thomas that Roe was wrongly decided (which was the finding the Right to Life movement was really hoping for - since third trimester partial birth abortions are so rare as to be non-existent). This puts the Roe reversers at two and only two (and they disagree on the rationale - Scalia taking the Federalist Society position that this should be a state issue and Thomas stating that the unborn have an equal protection right that the Court could recognize if it chose to). Roe seems to be going nowhere judicially - and the advocates for repeal on the Court cannot expect to be there for that many more years.

The only hope to overturn Roe, at least in part, is for the four centrists to agree that Congress has the right under the 14th Amendment to recognize the personhood of the unborn in the second trimester. No Congress will ever do so in the first, since such recognition would be unworkable. This is for two reasons - if first trimester fetuses were recognized as citizens, any abortion would be considered murder and the mothers would be as liable as the doctors under the equal protection doctrine. The enforcement power required would necessitate the investigation of every natural miscarriage to make sure that no foul play had occurred. Leaving such a power out would neuter any first trimester abortion prohibition. If enforcement power were confined to abortion clinics, they would become obstetric practices and the inquisition would start again. While abortion is an indecent act, the intrusion of the state into family life at such a time is untenable. The second reason is that all persons who die under medical care become the object of a tort action. This would discourage doctors from treating women in the first trimester - most likely at the behest of their malpractice carriers who would be on guard against claims against the policy instigated by pro-life ambulance chasers out for a quick buck by preying on grieving parents at a tender time.

Pro-life advocates are invited to design a scenario that does not allow intrusive investigations, won't encourage back alley abortions and keeps ambulance chasers at bay - however I don't believe it would pass the laugh test.

On gay marriage, while Kennedy is the swing vote, it must be noted that the arguments by plaintiffs in the Proposition 8 repeal case were drafted with his precedent overturning Colorado's gay rights amendment in mind - so it is expected that gay marriage will soon be the law of the land. Roberts worked on the Colorado side as an appellate lawyer as well, coaching plaintiff lawyers on how to get by conservative objections. I can't imagine Alito breaking with Roberts on this - indeed, given Scalia's dissent on Lawrence v. Texas (in which he stated that without a sodomy ban, there is no basis for denying gay marriage), the decision killing Proposition 8 may be unanimous.