Skip past the prelude for the Ballad of Samuel Alito that dragged on for two months, through the first largo phrases bowed by the United States Senate Violin Section (all of them concertmaster) and go straight to the sforzando leitmotif of the Democratic Party — that inalienable right to legalized abortion.
Charles Schumer, the baritone from New York, performed a duet in the Judiciary Committee hearing late Tuesday afternoon. Gesturing, he delivered a response to every one of Judge Alito's cautious explanations of whether the Supreme Court nominee still believed that, according to a letter written to Edwin Meese in 1985, "the Constitution does not protect the right to an abortion." Do you stand by that statement? intoned the senator. In as many words, Alito said that as a judge, he would consider the facts before him. Five times. Six times, Schumer leaned forward, hands out, and sang in triplet anaphora: I'm not asking you about stare decisis, I'm not asking you about cases! Response from Alito, and again: I'm not asking about case law, I'm not asking about stare decisis! Back and forth it went. I'm not asking you this, I'm not asking you that; Your opinion on Roe, please, in five seconds flat!
Samuel Alito did remind the chamber audience that no part of the Constitution, not one of its twenty-six amendments, has a word on abortion. But if only he had looked down, grinned, rapped his knuckles on the table and admitted Yes, Senator Schumer, and I will instruct the tailor to embroider that very phrase inside my robe. Maybe the judge truly is circumspect twenty years after the heady Reagan days; or just practical. That he refused to answer directly could not be deception, so difficult is it to convict a man of gainsaying when he is caught in a farce. Three acts through, the question of abortion was raised in each, when Samuel Alito's Democratic antagonists could hear the decorated judge's opinions per appointment if they simply saw to his confirmation — Antonin Scalia offers his opinion all the time.
Though the associate justice is recognized for his strict jurisprudence and lacerative wit, it should be the pellucid genius of Antonin Scalia that rests in legal annals. Scalia's intricate reasoning is set in plain words, in humor and slang often delivered in speeches, which those of us belletristic find comforting inasmuch as someone equally devoted to clarifying truths will practice articulatory distillation to our conjury. And what must chagrin people who think Scalia should not say much of anything in any manner is that he sounds so damnably reasonable.
What keeps morality? Not law, we learn from Scalia. That imperative lies with legislators and citizens — those who pass a statute and who must abide by it. If a court extracts rules from figurations — emanations, penumbras — the obligation to beneficence and deliberation on the part of the electorate is waived. "The Bill of Rights," the associate justice addressed to the Manhattan Institute eight years ago, "was a small exception to the innovation of 1789, which was democratic self government; that an intelligent society should debate these issues, even these important issues; persuade one another and govern themselves. That was what 1789 was about." Mustn't a democratic state perforce be run by a moral society? Yes. How is that best preserved? Settling cardinal disputes by majority vote. So reasonable.
When one places abortion under scrutiny the two positions are not "choice" and "life" but Roe and not-Roe. After that, precedent strengthens an argument but hardly makes it convincing. Scalia, again, calls Roe's bluff. Constitutional right to abortion? No. To life for that inside the womb? No. "Reading it as a lawyer I think the Constitution says nothing either way on it." And, consequently, neither should the Supreme Court. What about in a state legislature? A ballot box? Pass a law for or against, Scalia tells us. See? Reasonable. Fear of Roe overturned can only be fed by a mistrust of one's fellow citizen and one's representatives, as if a judicial retraction would propel every last state to a ban on the medical termination of a pregnancy.
Polls show that most Americans are comfortable with abortion existing in one or more forms. But there are considerations finer than the Supreme Court's stare decisis. When the lady tells the gentleman that there will soon be a baby in the house, from Donna Reed and James Stewart onward, nobody has turned to the other wondering who she's talking about.
Post-Roe, states would go their respective ways. I believe the use of abortion as a contraceptive to be executed only in cold-blooded conceit. But I find just as repugnant pressing a woman to carry a violative germ to its efflorescence, superintendent to lasting — indeed, living — injury. Nor would I abandon the progenitor. Were a law or a constitutional amendment for Ohio to proscribe only that first practice, and allowed a doctor to kill a fetus in the name of the exigent triumvirate — rape, incest, birthmother near death — I would not challenge its passage. And I would likely see greater concurrence where I live than San Francisco or Tulsa — where Californians and Oklahomans would codify their own judgments. Well, when Senator Schumer put on his little sing-song yesterday, did he consider that mediative power of federalism?
Arriving from afar, a foreign observer might conclude that the Supreme Court is a social arbiter, parties competing to compose the bench so that it carried out their policies. Stand back, goes that notion, and hear what the court has decided. Following Scalia's lessons, the wisdom of that court becomes as definite as an originalist's Constitution: What is unenumerated, judge for yourselves, and don't listen to us. Certainly not what Schumer wanted to hear, and a pity Samuel Alito would have been tossed out right there for saying it.