Spectral Justice
By James G. Poulos
Posted On September 14, 2005

As the Roberts nomination gives way to the Roberts confirmation hearings, constitutional scholar Arlen Specter reminds those less well versed in the modern state of law of two key concepts: gender minimums and extra-strength precedents.
"Two women, I think, are a minimum," Specter has publicly opined. "In the same breath," one can read at The Hill, "Specter added that the Supreme Court should not have a quota system for nominees." Although Specter has troubled to demolish his own argument, fans of his two-girl minimum may not. The idea implicit in any minimum number of justices fitting one physiognomy or another is of course that falling below this number represents "backward progress," presumably in the direction of the juridical dark ages when rights not present in the Constitution were oftentimes not present in real life, either.

What Specter et. al. run up against, however, even before the absurdity of this vision, is the more practical ridiculousness behind pegging today's supposed minimum of female Supremes at two. Based upon Senator Biden's concept of a rights jurisprudence which expands -- like matter into the nothingness the universe has yet to fill -- teleologically and infinitely into the vacuum of the constitutional text, it stands to reason that the diversity of the Court ought to expand apace with our enlightenment. In twenty years, we can easily imagine, we will look reproachfully down our noses at the prejudiced atmosphere of today's culture -- which caused even the ennobled liberal imagination to think so narrow-mindedly of "2" as the natural minimum female Justice count.

But the joke is on Specter in more than an editorial sense. The same preposterousness besotting his female-minimums argument screams from the new phrases of cultural advertisement like "deeply diverse" or "incredibly diverse," terminology which has put paid to the quaint notion that "regular," "ordinary" diversity was the innocuous goal of those pimping it out so ruthlessly to a guilt-stricken culture, or that such a thing as normal diversity even exists. For those of us still willing to fight for the usefulness and meaning of the d-word, the attempt to quantify diversity has always resulted in the obliteration of its quality -- particularly when it comes to diversity of thought.

In an unfortunate stroke of irony Specter increases the diversity of thought himself without also
improving it, by asking future Justice Roberts if he, too, believes in "super-duper stare decisis." To add to the rejoinder of criticism and ridicule already begun, the "super-duper precedent" Specter wants for abortion goes by an older and snappier name -- "constitutional amendment;" what's more, the use of SDSD by Specter solely to prop up the waterheaded legal reasoning behind Planned Parenthood v. Casey embarrassingly reveals that Casey, far from being an unimpeachable retrenchment of Roe v. Wade, is a heroic but scattershot and blatantly political plurality opinion which could not command more votes than it repelled and owes at any rate its existence to Justice O'Connor.

The idea, baptized by O'Connor in Casey, that the People would lose faith in the legitimacy of the Court unless it upheld Roe primarily out of fear of the People losing faith in the legitimacy of the Court is as much of a laugh then as it is now. But it is also a blot on the rule of law in general and constitutional law in particular, and makes a fatal mockery of the whole concept of precedent, which is anti-, not pro-, democratic. The rule of construction telling us we are stuck with laws we no longer agree with until we amend the Consitution is precisely the opposite of what those who find abortion and privacy rights in the Constitution want it to mean. And the shocking inability of any pro-choice politician to even propose a national abortion amendment in keeping with the holy Will of the People makes a two-bit sham of Biden's insistence that the Constitution is our secular "Bible."

The political religion of Biden and Specter has no Bible, only a Holy Spirit, which in its capricious good will snaps laws and scatters rights wherever it sees a frown. This Cupid, dressed up in a series of Constitutions only as enduring as fashion, fires off shafts dipped in a heavy elixir. It turns wants into needs and needs into commands, and makes Senators speak gibberish on national television.

James Poulos is an attorney and writer living in Washington, D.C.

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