Scalia (yet once more)

[Sanford Levinson]

Frankly, I'm not exactly sure what the importance is to Rick and at least
some of the participants in the First Things symposium that the judiciary
has become what Mary Ann Glendon calls a "de facto oligarchy."  Let me ask
Rick and Mike Paulsen:  Were you a member of the Supreme Court (and thus
relatively unbound by precedent), would you not only overrule Roe (which I
take it is not even an interesting question), but also interpret the
Fourteenth Amendment to grant personhood status to the fetus and thus
*require* states to give fetus-persons the same degree of protection that
other persons get against private violence?  Even if you think that this
isn't exactly playing cricket--it would be astonishing if this accorded with
any original intent, for example--would you be appalled if the judiciary
adopted this interpretation?  Or does an "honorable" judge have the duty to
enforce a democratic decision to allow abortion (or to resign)?

Thus I am suggesting Rick's and Mike's opposition to abortion would not
change a whit if the pro-choice policies had been adopted by the state
legislature and ratified in a general referendum, any more than that they
would excuse the Nazis because, after all, they won a relatively free
election in 1933. Bork may be different, because he really does seem to be
an all-out majoritarian democrat who believes that the voice of the people
really ought to be treated as the voice of God. But surely that isn't Mike
Paulsen's view or the view of anyone who takes Thomistic natural law
seriously. So don't at least some of the First Things symposiasts have to be
"anti-democratic" as well as "anti-judicial-oligarchy," at least when we
come to such substantive issues as abortion, slavery, etc.  Again, let me
underscore that I am not using the term "anti-majoritarian" or anti-democrat
as epithets.  I think that no sane person believes that majorities are
morally entitled to do just whatever they want.  I simply want to figure out
what underlies the antipathy toward the judiciary.

Sandy Levinson

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Sanford Levinson
B.U. Law School
EMail: levinson at bu.edu
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