Does Bush’s invocation of Dred Scott trump?

October 10, 2004

During the second presidential debate on Friday night, I could hardly believe my ears when President Bush, upon being asked what sort of Justices he might appoint to the Supreme Court, replied that he wouldn’t pick a judge who would decide another Dred Scott. I was beside myself because not only was Dred Scott decided about 150 years ago, making it practically ancient history, but it has also been overturned by at least three amendments to the U.S. Constitution.

(For those who don’t know, Dred Scott was the decision where Justice Taney in 1857 declared that all blacks, both slave and free, were not and never could become United States citizens. Specifically, because Scott was black, he was not a citizen and had no standing to sue.)

I thought, “why in the world would President Bush use THIS case as an example of the sort of judge he would not appoint?” Thanks to Heidi and, via Heidi, Paperwight’s Fair Shot, I think I now understand. Far from being incredibly uninformed and ridiculous, Bush’s answer was actually quite clever. After reading Heidi’s post and some dissenting language in an abortion decision, I am certain that Bush, by invoking Dred Scott here, was really saying that he intended to install Supreme Court judges who would overturn Roe v. Wade.

Indeed, as noted by Paperwight, pro-life advocates have been comparing Roe v. Wade with Dred Scott for years as an example of abhorrent Supreme Court jurisprudence. Scalia sums up that position nicely in his dissent in Stenberg v. Carhart (where the Supreme Court in 2000 struck down Nebraska’s attempt at a partial birth abortion ban):

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned in its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child- one cannot even accurately say an entirely unborn human child- proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion . . . The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

Telling, isn’t it? Indeed, as illustrated by the words in this dissent, for legal conservatives Dred Scott has become a sort of code for Roe v. Wade.

So President Bush, in effect, was basically saying that he would appoint judges to the Supreme Court who would overturn Roe v. Wade, which to conservatives represents just such bad jurisprudence as that found in the infamous Dred Scott. President Bush was not just being ignorant in saying that, but was very cleverly submitting a message to his base.

Now, consider this counsel from Elder Oaks regarding abortion:

The Church opposes elective abortion for personal or social convenience. Our members are taught that, subject only to some very rare exceptions, they must not submit to, perform, encourage, pay for[note: didn’t Kerry say in his portion of the debate that he would not hesitate to provide abortions paid for by our tax dollars? And does that constitute Church members “paying for” an abortion?], or arrange for an abortion.

In today’s world we are not true to our teachings if we are merely pro-choice. We must stand up for the right choice. Those who persist in refusing to think beyond slogans and sound bites like pro-choice wander from the goals they pretend to espouse and wind up giving their support to results they might not support if those results were presented without disguise.

. . .

Some Latter-day Saints say they deplore abortion, but they give these exceptional circumstances as a basis for their pro-choice position that the law should allow abortion on demand in all circumstances. Such persons should face the reality that the circumstances described in these three exceptions are extremely rare. For example, conception by incest or rape—the circumstance most commonly cited by those who use exceptions to argue for abortion on demand—is involved in only a tiny minority of abortions. More than 95 percent of the millions of abortions performed each year extinguish the life of a fetus conceived by consensual relations. Thus the effect in over 95 percent of abortions is not to vindicate choice but to avoid its consequences. Using arguments of “choice” to try to justify altering the consequences of choice is a classic case of omitting what the Savior called “the weightier matters of the law.”

. . .

If we say we are anti-abortion in our personal life but pro-choice in public policy, we are saying that we will not use our influence to establish public policies that encourage righteous choices on matters God’s servants have defined as serious sins. I urge Latter-day Saints who have taken that position to ask themselves which other grievous sins should be decriminalized or smiled on by the law due to this theory that persons should not be hampered in their choices.

Dallin H. Oaks, “Weightier Matters”, Ensign 13 (Jan. 2001).

That was a long quote, perhaps too long, and I hope you are still reading. Because Bush as much as said that he would appoint Supreme Court judges who would overturn Roe v. Wade if given the opportunity, and because Senator Kerry basically said that he would allow our tax dollars to fund abortions, I wonder if Elder Oaks counsel makes a compelling case for Latter-day Saints to vote for President Bush in November, despite the other important issues on which President Bush has perhaps failed the country.

And that, people, is my current quandary. Does the mandate to oppose abortion trump other important policy considerations for Latter-day Saints? I personally am one who does not think that President Bush has been terribly effective as President. I think that our country is worse-off than it could be after 9/11 because of his Presidency. Americans need health care and jobs, and the top income earners don’t need a tax break. But I feel very strongly against abortion, against allowing it in this country, and ESPECIALLY against my tax dollars funding such a heinous act.

So which issue trumps?