Are social issues just a distraction to court?

Next January it will be 38 years since the Supreme Court, in its Roe v. Wade decision, imposed the legalization of abortion on the entire United States. It’s hard to comprehend that Americans now approaching middle age hadn’t even been born back then — and hard for some to accept the fact that the conflict begun that day continues unabated. 

In a Washington Post column published at the start of Senate hearings on pro-choice Elena Kagan’s nomination to the Supreme Court, E.J. Dionne Jr. approvingly cited remarks by Sen. Al Franken (D-Minn.) to the effect that people shouldn’t spend so much time fretting over where the Supreme Court stands on abortion. The hearings, Dionne wrote, would do well to shift the focus from “hot-button social issues that have been a distraction from the main game,” which ought to occupy the court. 

And what game is that? Here’s Dionne’s agenda for the court: “the use of the Supreme Court as a redoubt against progressive legislation, the right of plaintiffs to call corporations to account before juries and the ability of the political system to protect itself against corruption.” 

Leaving aside the ideological tilt of the writer’s rhetoric, one can agree that the issues exercising liberals like him and Franken merit a place on the Supreme Court’s docket. But it doesn’t follow that “hot-button social issues” are matters of small importance that can and should be ignored. On the contrary, the questions thus dismissively characterized are of fundamental importance to bedrock values whose affirmation or rejection in the years ahead will radically determine the future direction of American society. 

It isn’t just abortion either. As this is written, the country is waiting to find out whether a federal court judge in San Francisco will or won’t sustain the November 2008 decision by California voters that only heterosexual marriage should be legally recognized in their state. 

Whichever way the judge rules, the case appears virtually certain to go to a federal circuit appeals court and from there to the U.S. Supreme Court itself. The long-awaited high court decision on same-sex marriage has begun to take shape. 

As for abortion, it’s obvious — or at least should be — that the fundamental constitutional issue at stake turns on whether the unborn shall enjoy all, some or none of the rights of personhood. 

That puts abortion in the same league, constitutionally speaking, with the Dred Scott decision of 1857, in which the Supreme Court, to its lasting embarrassment, held that slaves weren’t citizens and needn’t be treated as such. 

For years liberals have been saying that the time had come to drop abortion and other social issues from the national policy debate. Some of them no doubt are sincere in making this point, but for others it’s a tactical ploy. Repeat something often enough and chances are good it will become a self-fulfilling prophecy — in this instance, social issues really will disappear from serious discussion.  

To use a word applied by Dionne to social conservatives, here is a case of heavy-duty “propagandizing” by liberals to achieve their ends. 

The headline on the Dionne column in the Post was “Whose Court Is It?” That’s a good question.  

But the Supreme Court doesn’t belong only to people who think like Al Franken and E.J. Dionne. It’s everybody’s court. That most certainly includes those of us who believe questions like the personhood of the unborn and the nature of marriage occupy a place of central importance to the present and the future of the United States. 

Russell Shaw is an OSV contributing editor.