Here’s a big surprise: they were not chosen primarily for their position on abortion or other social issues. According to a recent book by Charlie Savage, what really binds them together is that they all have an exalted view of executive authority. The details can be found here. As the author points out out, Roberts and Alito inhabited a very small corner of the “conservative” legal universe.
What struck me most was their attitude towards the infamous Hamdan case, where the Supreme Court threw out the administration’s military commissions on the grounds that their structures and procedures violated both the Uniform Code of Military Justice and the Geneva Conventions (especially Common Article 3 which states that detainees shall not suffer torture or outrages upon personal dignity.) Let’s review a little. As noted by legal expert Marty Lederman, the most significant finding of this ruling was that the Geneva conventions applied to Al Qaeda suspects. For the US has always applied these “minimum, fundamental standards to all detainees, whether or not the detainees themselves were party to (or abided by) Geneva or not (including, for instance, the Viet Cong).” This long-standing practice ended in 2002 when the Bush administration determined that Common Article 3 did not apply to Al Qaeda, and that for all others, the standards were to be applied only “to the extent appropriate and consistent with military necessity.” The Supreme Court was loud and clear: torture is simply unacceptable.
We also know that torture is intrinsically evil. And yet Catholics Scalia, Thomas, and Alito dissented. Savage claims that what motivated Alito was a strong affinity for unbridled executive power. Roberts recused himself from the Hamdan case, but his stance was also clear: according to Savage:
“And in the spring of 2005, as he was interviewing with White House officials for a potential Supreme Court vacancy, Roberts sided with the White House in the Hamdan case, saying that a president need not consult with Congress when setting up military commissions, and that he has the power to declare that the Geneva Conventions do not apply to wartime prisoners he does not want the treaty to protect.”
Yes, the so-called pro-life judges have no qualms about supporting the executive’s right to torture people, simply because it is the executive that does it. I suggest the pro-abortion lobby adopt a new tactic: persuade the executive to use its inherent authority to directly authorize abortions. The current Supreme Court might lap it up.
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