Roe and Heller and the Limits of Partisan Entrenchment

Slate's blog on legal issues.
July 1 2008 10:37 AM

Roe and Heller and the Limits of Partisan Entrenchment

Like all good conspiracy theorists, Jack posits that a complex outcome must be the result of either "dumb luck" or ingenious strategizing by an all-powerful and all-knowing single actor. Here, the complex outcome is that Republican presidents—despite having numerous chances to fill Supreme Court seats—have not been able to do what the GOP platform claims to want to do: overturn Roe . And the non-dumb-luck explanation for that is that the right wing is brilliant—carefully choosing justices with an eye to keeping the Roe issue just alive enough to retain credibility as the pro-life party without engendering a pro-choice backlash. But as the comments to Jack's latest post show, there's an alternative to the dumb-luck/conspiracy choice, and it's called ordinary politics. The Republican Party was for a long time—and perhaps still is—internally divided on the merits of Roe . Liberal Republican, pro-choice northeasterners are not hard to find even still. And so there has been infighting and intrigue within the party itself when it comes to judicial selection—and it's that internal fight that I think probably best accounts for the Souter nomination, not a sneaky desire by the president to pick someone who would uphold a right that he actually opposed because doing so would help the Republicans win elections. There was also Democratic Party resistance to some proposed Republican appointees—Bork being the most notable. And finally, there were other political factors, such as constituent outreach as in the case of appointing women (O'Connor). In short, a whole range of messy political factors—many of which involved the effective mobilization by pro-choice forces within both parties—explain why the effort to overturn Roe has (thus far) come up short. And so, it seems to me, the least likely explanation is that a vast right-wing conspiracy was afoot in which Republican presidents cleverly and consciously planned everything to come out just this way, appointing just enough justices who would oppose Roe in their dissents to make it look good while never quite going all the way. So, in rejecting Jack's theory, I am not casting my lot with dumb luck. I am just skeptical about a familiar left tendency: to attribute to the right wing a kind of omniscience and absolute control over political dynamics that just does not exist.