democracy, abortion and the supreme court
following discussions of the lovely topics of beauty and friendship, a return to the world of politics:
after the recent death of the chief justice rehnquist, there has been renewed concern and speculation about president bush's second supreme court nominee. with regard to any number of controversial issues, many people on all sides seem convinced that bush's decision is tremendously important, possibly more important than anything else bush will do during this term in office. because of the close nature of many of the courts decisions, it is argued that whoever is appointed to the court may well transform our legal rights and our way of life for years to come.
perhaps no one feels this way more than those fearful that the supreme court may one day overturn its decision in roe v. wade, thus taking away the court's protection of a woman's legal right to an abortion. to hear many pro-choice advocates tell the story, the person who will replace justice o'conner will single-handedly determine the fate of women's rights (and lives) in america. likewise, many pro-lifers seem to feel the same way: that the life or death of thousands, even millions, of unborn children may be determined by whomever bush appoints to the court.
surely some of this talk is an attempt by each side to galvanize their base, a way of mobilizing energy for the political fight over the next appointee by convincing their fellow combatants of the singularly important nature of this particular fight. but i do not think that all of this talk is just rhetorical flourish. rather, i think many people honestly believe that a single person on the supreme court could radically alter the politics and practice of abortion in america. and perhaps they are right.
but there is, i think, something very strange about this situation, and what is strange is how very undemocratic it seems. of course, the whole process is in many ways democratic: the president who makes the appointment was democratically elected, as are legislators who must vote to approve the appointment. and if the people do not like these appointments, they can vote against the people who make and approve them. at the same time, the justices are not elected directly, and once a justice is appointed he or she cannot be voted out. it is no secret that, for both of these reasons, the supreme court is the least democratic branch of our government.
what is strangely undemocratic about the current abortion situation, however, is not only that the decisions are made by people who were not directly elected and who cannot be voted out. it is also that there are only a handful of people making the decisions, which gives rise to the situation in which one person could be the deciding vote, thus giving the impression that the rights of millions (of women and/or unborn children) rest in the hands of a single individual.
it a curious thing, i think, that neither side of abortion side seems especially concerned to point out this undemocratic state of affiars. granted, there is a traditon of pro-life concern going all the way back to justice white's dissent in row which points out that the roe decision overturned the democratic majorities of the state legislators in an act of 'raw judicial power.' still, many pro-lifers today seem ready to let the court decide the issue, optimistic no doubt that they can win through the courts, with an overturning of roe v. wade possibly just around the corner. likewise, pro-choicers, no doubt recognizing that many, perhaps most, states would enact more restrictive abortion laws were roe overturned, seem eager to keep the abortion issue out of the legistatures and in the courts.
the undemocratic character of abortion politics in america strikes me as troublesome for several reasons. to begin with, it seems to stifle debate and information about the actual nature of abortion. when abortion become a 'court issue', it is easy for it to get drowned in legal-ese, to become something remote and abstract. but abortion is as concrete as any political issue could be -it is literally a matter of flesh and blood. surely, then, if there is disagreement among honest and thoughtful people, we ought to debate the issue in a way that is most open to the concrete realities, most responsive to local, communal, and personal concerns.
but the idea that the court has, or even could, simple 'decide the issue', gives rise to a kind of complacency in people's thinking -abortion becomes something for old people in robes to rule on, not something that can be understood and debated in the public square. moreover, that abortion has become a 'court issue' helps to explain, i think, why there has been so little productive debate on the issue; the nuances and complexities of argument are of little concern, because each side is simply holding out for the court to hand it victory (or reaffirm the victory handed to it earlier).
finally, and most generally, isn't there a value in debating and deciding the issue of abortion as communities, rather than handing the issue over to a few individuals and pinning our hopes on them? this value, i think, has something to do with the value of actually persuading our fellow citizens of what is right, rather than simply defeating them politically. this is something that martin luther king jr. seems to have understood: that a legal victory would be a hollow one unless accompanied by a transformation of heart and vision. thus real change must be democratic in a deep sense; not just a political or legal change, but an actually transformation of the δεμος, the people.
after the recent death of the chief justice rehnquist, there has been renewed concern and speculation about president bush's second supreme court nominee. with regard to any number of controversial issues, many people on all sides seem convinced that bush's decision is tremendously important, possibly more important than anything else bush will do during this term in office. because of the close nature of many of the courts decisions, it is argued that whoever is appointed to the court may well transform our legal rights and our way of life for years to come.
perhaps no one feels this way more than those fearful that the supreme court may one day overturn its decision in roe v. wade, thus taking away the court's protection of a woman's legal right to an abortion. to hear many pro-choice advocates tell the story, the person who will replace justice o'conner will single-handedly determine the fate of women's rights (and lives) in america. likewise, many pro-lifers seem to feel the same way: that the life or death of thousands, even millions, of unborn children may be determined by whomever bush appoints to the court.
surely some of this talk is an attempt by each side to galvanize their base, a way of mobilizing energy for the political fight over the next appointee by convincing their fellow combatants of the singularly important nature of this particular fight. but i do not think that all of this talk is just rhetorical flourish. rather, i think many people honestly believe that a single person on the supreme court could radically alter the politics and practice of abortion in america. and perhaps they are right.
but there is, i think, something very strange about this situation, and what is strange is how very undemocratic it seems. of course, the whole process is in many ways democratic: the president who makes the appointment was democratically elected, as are legislators who must vote to approve the appointment. and if the people do not like these appointments, they can vote against the people who make and approve them. at the same time, the justices are not elected directly, and once a justice is appointed he or she cannot be voted out. it is no secret that, for both of these reasons, the supreme court is the least democratic branch of our government.
what is strangely undemocratic about the current abortion situation, however, is not only that the decisions are made by people who were not directly elected and who cannot be voted out. it is also that there are only a handful of people making the decisions, which gives rise to the situation in which one person could be the deciding vote, thus giving the impression that the rights of millions (of women and/or unborn children) rest in the hands of a single individual.
it a curious thing, i think, that neither side of abortion side seems especially concerned to point out this undemocratic state of affiars. granted, there is a traditon of pro-life concern going all the way back to justice white's dissent in row which points out that the roe decision overturned the democratic majorities of the state legislators in an act of 'raw judicial power.' still, many pro-lifers today seem ready to let the court decide the issue, optimistic no doubt that they can win through the courts, with an overturning of roe v. wade possibly just around the corner. likewise, pro-choicers, no doubt recognizing that many, perhaps most, states would enact more restrictive abortion laws were roe overturned, seem eager to keep the abortion issue out of the legistatures and in the courts.
the undemocratic character of abortion politics in america strikes me as troublesome for several reasons. to begin with, it seems to stifle debate and information about the actual nature of abortion. when abortion become a 'court issue', it is easy for it to get drowned in legal-ese, to become something remote and abstract. but abortion is as concrete as any political issue could be -it is literally a matter of flesh and blood. surely, then, if there is disagreement among honest and thoughtful people, we ought to debate the issue in a way that is most open to the concrete realities, most responsive to local, communal, and personal concerns.
but the idea that the court has, or even could, simple 'decide the issue', gives rise to a kind of complacency in people's thinking -abortion becomes something for old people in robes to rule on, not something that can be understood and debated in the public square. moreover, that abortion has become a 'court issue' helps to explain, i think, why there has been so little productive debate on the issue; the nuances and complexities of argument are of little concern, because each side is simply holding out for the court to hand it victory (or reaffirm the victory handed to it earlier).
finally, and most generally, isn't there a value in debating and deciding the issue of abortion as communities, rather than handing the issue over to a few individuals and pinning our hopes on them? this value, i think, has something to do with the value of actually persuading our fellow citizens of what is right, rather than simply defeating them politically. this is something that martin luther king jr. seems to have understood: that a legal victory would be a hollow one unless accompanied by a transformation of heart and vision. thus real change must be democratic in a deep sense; not just a political or legal change, but an actually transformation of the δεμος, the people.
posted by micah at 10:42 AM
5 Comments:
Interesting thoughts. I wonder, though, whether debate in communities on an issue can in fact become more intense after a court rules on it, rather than less so. It seems like those who disagreed with the ruling would now have something tangible to point to and press back against, whereas before it was more abstract. And if the naysayers are outraged and more vehemently opposed, then maybe even the vindicated proponents will need to continue to be vocal and assert their position.
But I guess this doesn't make for actual debate necessarily, where communities get together and dialogue to "decide" on an issue. It probably just continues to follow the good American guideline of talking *at* each other, instead of *to* each other.
I agree that this state of affairs is undemocratic, but I think that's kinda the point. American isn't a democracy; it's a republic. Therefore, the minority is protected, to some extent, from the majority. It strikes me as a positive thing that the Supreme Court is somewhat removed from the whims of popular opinion.
What I do find problematic is what Micah pointed about our reliance on or trust in the court system to decide this "matter of flesh and blood." We do seem to have abandoned meaningful discussion on the community level because there are much bigger fish to fry on the national scene. Here's one theory as to why...
I grew up pro-life, much the same way I grew up a Texan. That's certainly not to say the two are synonymous; it's simply to say the culture I grew up in was politically pro-life and I am thus in my static state. To be otherwise would require an effort, as it would require an effort (i.e. a move) for me to be anything other than Texan.
I grew up hearing that life is sacred at conception from the pulpit; once a year my family stood shoulder-to-shoulder with thousands of other pro-lifers in my hometown holding signs that read things like "Abortion Stops a Beating Heart" on a main thoroughfare; as a teenager I volunteered at a Crisis Pregnancy Clinic that provided viable alternatives to abortion.
This experience--being raised to be pro-life, or pro-choice for that matter--is not unique to me. But I think it might be unique to our generation. Those of us born in close proximity to the Roe v Wade decision are part of the first generation to be raised by parents and in faith communities specifically galvanized to political action regarding this issue--as either pro-life or pro-choice--by the Supreme Court's decision.
And I wonder if this fact means that opinions on either side of this issue are now a function of culture, more so than a result of study and reflection (or has this always been true?)? It's one thing to challenge a person's ideas about zygotes, it's another to challenge his or her culture. And I wonder if this, as much as the undemocratic nature of the court, has stifled meaningful conversation on the topic?
Lisa
***
One more suggestion...
Despite the fact that the USA is a republic at a legal level, I do think it has the potential to fulfill the grand ideas of the Declaration of Independence only if it functions as a democracy on a community level--in the "deep sense" Micah speaks of that involves engaging hearts and minds. I'm reading a book right now that seeks to stoke such democracy that I'd highly recommend to anyone interested in the conversation from a Judeo Christian perspective: The Gospel According to America by David Dark (Westminster John Knox Press). In the introduction he writes:
"Like discipleship, the practice of democracy is a widening of our capacities for moral awareness and an expansion of our sphere of respect. If we have a steadily narrowing vision of people to whom we're willing to accord respect of if the company we keep is slowly diminishing to include only the folks who've learned to pretend to agree with us, we can be assured that we're in danger of developing around ourselves a kind of death cult, a frightened, trigger-happy defensiveness that is neither godly nor, in the best sense, American. Our preferred pundits, who many of us consult throughout the day like shots of espresso, need not define the terms by which we speak with out coworkers, and it they're making us less peaceable in the way we disagree, we might want to rethink our dependence upon them. The biblical alternative is an enlarged sense of neighborliness that strives to maintain "neighbor" as an ever-widening category. The injunction to love the neighbor in the minute particulars of speech and action has never been an easy one, but it might be the nearest and most immediate form of patriotism available to any of us. If is also the one vocation that, if neglected, will lead to the forfeiting of any and all soul."
Lisa
***
I really enjoyed reading this post. Actually just the other week we were having a conversation with one of our closest Iranian friends about abortion, the Supreme Court, and democracy. The Guardian Council in Iran, like the Supreme Court in the US, is unelected and holds tremendous power. Its members are appointed by the Supreme Leader, formerly Khomeini and now Khamanei. The Guardian Council has been criticized over and over in Iran and in international politics because it is not democratically elected. Our friend was surprised to find that in America we also have a powerful unelected governmental institution, because, like you said, no one ever seems to take issue with the fact that the SC is not popularly elected.
I found Lisa's comments on growing up pro-life or pro-choice very astute. And we do tend to talk too much "at" each other in this issue and not "to" each other.
as indebted as the civil rights movement is to mlk and his democratic impulses, i don't think we want to deny the at least equally crucial role played by the warren court. and, somewhat in line with bethany's comment, i don't think the decisions of the warren court stifled debate; certainly they fueled it.
yes, yes, democracy and the voice of the people, but both sides of the abortion debate claim human rights as the stakes. i'm not sure that human rights is something i trust to majority rule - but maybe i'm becoming an elitest in my old age. (or maybe i've been reading too much plato.)
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