OK, now I can�t really classify Richard as a �pragmatist� any more, at least not like his colleague Richard Posner, who, if I understand him correctly, despairs of any real unchanging content to Constitutional rules (I took that to be the thrust of Posner�s wonderfully-titled book on the Clinton impeachment, An Affair of State). Richard has also marvelously blasted, sub silentio, Sandra Day O�Connor, who fits Richard�s description of a bad pragmatist to a �T.� Richard ended his last post as simply a defender of the rule of law in general and the rights of property in particular. Let�s move in a different, and more controversial direction. So far we�ve touched on property rights, religion, and race, so let�s have a shot at what�s really roiling our judicial politics: abortion.
What early excited the Democrat Senators and their base was whether a Justice Roberts would be inclined to overrule Roe v. Wade, although this issue was something of a red herring, since there are still five Justices (Stevens, Kennedy, Souter, Breyer and Ginsburg) who would still vote to uphold it. But a Justice Roberts might be inclined to support partial birth abortion prohibitions to a greater extent than did Justice O�Connor, and a Justice Roberts might also expand the permissible area of state regulation of abortion in the areas of parental notice, waiting periods, state discouragement of abortion, or clinic regulation and policing, and he might broaden state discretion in this area by joining with four other justices to make clear that abortion statutes cannot be set aside easily through facial challenges. Thus, a Justice Roberts, if he really believed that the Constitution was not intended to create a right to abortion on demand, could erode, if not obliterate Roe, Casey, Stenberg, and similar decisions.
What I found very interesting about Richard�s last post was his clear implication that the rule of law contains a moral component, and that immoral pragmatists (like O�Connor?) who bend the rules deserve condemnation. I think Richard also in our exchange (and elsewhere, I�m sure) has helped to make the case that the defense of property rights is a moral undertaking, since expropriation by individuals or by the state is something our legal rules have condemned as immoral as long as civilization has existed. So what does a champion of property rights make of abortion, and the manner in which it animates opposition to Roberts? I have some sympathy for the notion that property is the central organizing concept in our Constitutional system, although I think there is a moral foundation for the rule of law anterior even to the concept of property rights. Abortion, I think, cuts at the core of this anterior moral foundation, hence the strong position of the Catholic church, for example, against a �right� to terminate pregnancies (much like its opposition to the death penalty or to assisted suicide). Richard took a position on religion that seemed to be based on letting a thousand flowers bloom, but I think it�s harder to do that with abortion. I have some thoughts on the issue, but I�d like to serve the ball into Richard�s court first, see what kind of spin he puts on his return, and see how that helps us think about Roberts in particular, and jurisprudence and judicial selection in general.