About 20 years ago, I attended a symposium in San Francisco commemorating the Roe v. Wade decision. It was an interesting event, in which Charles Reich, who was my constitutional law professor at the time, was a featured speaker. If memory serves, Nancy Pelosi and Barbara Boxer may have been there as well, and I seem to recall that the event was held at Hastings, the second tier California public law school.
In any event, Reich was speaking sort of off the cuff at one point, and he suddenly got this light in his eyes, and he said, “you know, you can’t dismiss the idea that the Dred Scott decision haunted the Court when Roe v. Wade was being considered.”† He elaborated that the Dred Scott really hardened the sectional divisions between North and South, and perhaps made the Civil War inevitable, and he pondered that sometimes the United States Supreme Court has the ability, and the power, and perhaps sometimes the inclination to be the ultimate protector of the Union from culture war. And, yes, slavery was a culture war issue.
Even on the American left, there has always been disquiet about Roe v. Wade. Legally, it was probably the worst reasoned decision handed down by the Supreme Court since Dred Scott, and it would stand as the worst decision until Bush v. Gore. There is no doubt that the intent of the state of Texas in outlawing abortion was a moral basis, and the United States Supreme Court could have struck down the statute on First Amendment grounds. Instead, it made a broad declaration with national import, and while it has sparked a thirty year culture war, it certainly did not create a patchwork of abortion/anti-abortion states as Dred Scott divided the nation.
So what is the United States Supreme Court going to do about gay marriage? And would Reich, who is gay, agree to forego the union for gay marriage, or would he pick union over marriage equality?† On one hand, even the liberals on the Court are uncomfortable with Roe v. Wade. On the other, the Court worries about another Dred Scott. Roberts is looking for legacy, but already his legacy is one of bad decisions on big cases which resolve nothing and which do, in fact, inflame the political community. (Obamacare is really Obamatax, and the issue of its application isn’t yet ripe. huh?) The United States Supreme Court, in its arguments this week, really looked like what the Congress should have doing about this issue, but didn’t do, 20 years ago. Now, we have the Roberts court which holds in its hand whether it makes a broad brush and controversial decision like Roe v. Wade, or instead establish a patchwork which will result be another Dred Scott, yet more fuel for the sense that there are now two Americas – one red and one blue, irreconcilable. This isn’t a principled court. It’s a court made up of political hacks appointed by gutless presidents and approved by weak Senates that have discouraged the appointment of great thinkers to the highest bench.
The one thing I am sure of, however, and it’s why I don’t envy this Court, is that, no matter what it does, history will show it did the wrong thing.