The University of Texas at Austin   School of Law

Main menu:

January 17, 2006

Press Contact:
Allegra Young, UT Law, (512) 471-7330.

Power Ploy

For Republicans, the furor over Roe vs. Wade is a useful distraction from the real prize

Samuel Alito can help deliver on the Supreme Court: vastly expanded presidential authority

By Sanford Levinson
Reprinted with author's permission
The Hartford Courant, January 15, 2006

Alfred Hitchcock was a master at using the "maguffin" - a seemingly obvious part of the plot that was in fact designed to distract the viewer from what, in retrospect, was really important.

Hitchcock would appreciate the dramatic aspects of Samuel Alito's nomination to the Supreme Court. The "maguffin" is Roe vs. Wade and the future of reproductive choice. Almost immediately, that became the center of the Alito story line. His opponents suggested that he would provide a vote to overrule Roe and allow the criminalization of abortion; his supporters either applauded that possibility or suggested that he would defer to Roe as a "superprecedent."

We should ask two questions, however. First, do most Republican operatives want to see Roe overruled? The answer is almost surely not. The demise of Roe would likely spell electoral disaster for a Republican Party that has been able to capitalize on its purported opposition to abortion without having to take genuine responsibility for crafting a policy designed to appeal to a majority of the American public. Rep. Thomas M. Davis III, a Virginia Republican, told a breakfast meeting hosted by the Christian Science Monitor that overturning Roe would likely produce "a sea change in suburban voting patterns" detrimental to the GOP.

There is no reason to think that these lost votes would be compensated by Democratic defectors eager to embrace the criminalization of abortion. Every poll indicates that the nation basically supports the clumsy compromises achieved by the current Supreme Court. The second question is whether Judge Alito is unique in his professed doubts about abortion. The answer is an even more resounding no.

Many potential nominees to the Supreme Court are equally skeptical about constitutionalizing abortion rights, whether because of an elaborated theory of constitutional interpretation or simply because of a belief that courts generally should defer to majoritarian political institutions.

If opposition to Roe or, as suggested by some, protection of the religious were really front and center for the White House, the most obvious nominee would have been Michael McConnell, an unusually distinguished former law professor at Chicago and Utah who is now on the Tenth Circuit Court of Appeals.

McConnell, though quite conservative, was endorsed by many liberal law professors (including myself) when he was being considered by the Senate for his present position.

So what does explain the mystery of Alito's nomination? The answer lies in the central, overriding aim of the Bush administration: the enhancement of unrestrained executive power.

Everything else is subordinate to creating an executive branch that is unanswerable either to Congress or the courts, as the president fights a permanent and total war against those he deems our enemies.

To achieve this aim will require favorable decisions from the Supreme Court as to the scope of the "commander-in-chief" power. No doubt the president expects just such decisions from a Justice Alito (and will be more than accepting of a suddenly "precedent-respecting" justice with regard to Roe).

Other nominees, such as the Fourth Circuit's Michael Luttig, would have been equally predictable allies of the commander in chief. But Luttig is too obvious in this regard. One of Alito's advantages is that he has had no opportunity to weigh in on such issues on the Third Circuit (though he has demonstrated his doubts about abortion).

He is, therefore, a peculiar kind of stealth candidate. It was perfectly all right to excite liberal opponents with regard to abortion; that is useful to reinforce Bush's vaunted base and draw the opposition of Pavlovian liberals who serve an essential role in the American psychodrama so successfully constructed by the Republican Party in the past quarter-century.

Hitchcock would be proud. Only because of the National Security Agency revelations is there any recognition at all that the deep plot is to achieve unfettered power by the president.

Samuel Alito is all too likely to have been chosen on the basis of a confident prediction that he will, as a life-tenured member of the Supreme Court, display the same contempt for Congress as does the occupant of the White House.

If the Senate blithely acquiesces in Alito's appointment, its members will have only themselves to blame if they later profess outrage at judicially unchecked executive branch excesses - even if it turns out that Alito chooses to keep Roe on the books.

To move from Hitchcock to another classic movie, such outrage would be like expressing "shock" that there is gambling in Casablanca.

Sanford Levinson is a professor of law at The University of Texas School of Law at Austin.

Related Links:
About Professor Levinson: http://www.utexas.edu/law/faculty/svl55/