The Death of the Abortion Debate?

Post-Alito, the issue may recede on the national stage.


America's political right is in love with Sam Alito. Propaganda minister Rush Limbaugh tagged the Supreme Court nominee's performance before the addled Senate Judiciary Committee as a display of "pure human excellence." Shellac-coifed pundit Cal Thomas foresees Alito's destiny as a "super justice," and so on. What occasions the praise? Relief that Harriet Miers is long gone?

It is certainly not any direct indication from Alito that he intends to give conservatives their desired rollback of Roe v. Wade. In fact, in his testimony Alito has found a right to privacy in the Constitution, and he declined to follow Robert Bork in rejecting the Griswold decision, the foundation of the Roe case.

Alito also offered a that-was-then-this-is-now explanation with regard to his 1985 anti-Roe memo, penned as a Reagan administration lawyer.

"The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General's office. But that was 20 years ago and a great deal has happened in the case law since then," Alito told the committee.

In other words, never mind.

But something else has changed in the past few decades besides Judge Alito's job and his thinking. Abortion has much more company on the social conservative score card today. Issues like gay marriage, end-of-life decisions, even video game violence all provide an opportunity to draw a line against perceived excesses of a more liberal lifestyle. In short, there are more perches than ever before from which one may stand athwart history and shout stop.

The brand of modern liberalism embodied by the Democratic Party does not recognize that reasonable people might land at different places on any of these issues. In fact, the left sees differences here as an indication of a character flaw, which explains the fascination with "uncovering" evidence of bigotry or intolerance among judicial nominees.

Columnist Jim Pinkerton says the Democrats are blinded by "a left-liberal litigation vision" that seeks to use the courts to enforce compliance with their narrow view of acceptable civil, social, and even economic life. Most of America does not like that.

Republicans then, by default, get to claim the mantle of the mainstream on many social issues. But they still try to play the embattled, principled minority card, too. For all the complaints on the right about runaway courts and unelected judges ruining America, it is fascinating to see the depth and breadth of the conservative Justice-in-waiting farm team. Alito and John Roberts are top-notch legal minds in an arena demeaned almost hourly by pundits on the right. The storyline does not square with reality.

A Justice Alito on the Court may force the body politic to confront this new reality, where abortion does not play a central role on the socio-political scene. The left will have failed to stop a nominee that, in their construction, threatens to reverse one of the singular civil rights advancements of 20th century America. Moreover, the American public did not pay much attention to their failure.

But the right will creep closer to its long-sought 5-4 court certain—absolutely certain—to revisit and overturn Roe. Except that Alito may never vote that way. Both sides may have to live with the alternative: An armistice in the battle over Roe.

Columnist Steve Chapman, after eviscerating the thinking behind the decision, notes that a Justice Alito may not be in a headlong rush to jettison Roe:

At this point, though, even a grossly flawed decision may be too established for the justices to abandon. To say Roe was wrong in 1985, a dozen years after it came down, is very different from saying today that the court should upend a landmark decision that it has repeatedly reaffirmed.

As a conservative practitioner of a profession that stresses respect for history, continuity and predictability, Alito may ultimately be willing to leave Roe in place.

And writing in the National Journal Stuart Taylor, Jr. dares readers to find an Alito-the-zealot smoking gun:

After reading hundreds of news articles and interviewing dozens of people during the nearly 10 weeks since Alito's nomination, I have yet to come across a single suggestion (even anonymous) by anyone well acquainted with the man that he will bring a radical conservative agenda to the Court.

No radical, huh? Sounds like Roe will be with us for awhile, then. Whatever will we talk about?