Personnel and Precedent

Reading Linda Greenhouse’s valedictory essay , Digby emphasizes this passage:

In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution’s text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork’s constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”

It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists — 5-to-4 decisions that would surely have found Judge Bork on the opposite side — is a measure of the lasting significance of what happened during that long-ago summer and fall.

Elsewhere in the dead tree edition, the paper identified three landmark cases; Casey was called “The Triumph of Precedent.” But was it, at least in the sense that precedent compelled justices to do something they would otherwise have been strongly opposed to? It’s far from clear. The three justice plurality in Casey reached pretty much the same conclusion you would expect reasonably moderate Rockefeller Republicans to reach: formally legal pre-viability abortion while states have wide latitude to pass silly regulations that make it harder for poor women to procure them. More importantly, had Bork been confirmed the Roe precedent would have been worth nothing. It was the defeat of Bork, rather than the pull of precedent, that explains Casey.

And for this reason, as I’ve said before, it’s unwise for progressives to get too complacent about Roe or other landmark liberal precedents. The upholding of Roe may seem inevitable in retrospect. but it wasn’t. Had Reagan nominated Bork and Scalia in reverse order, or Bush had gone with Ken Starr rather than Souter, Roe would have been overruled. It’s true that the Court rarely swims far outside the mainstream, but governing factions have a variety of interests and political priorities. In the Rehnquist Court, culturally moderate conservatives controlled the center. I would be unwise to assume that the same would be true of the Roberts Court after another Republican term or two.