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Fetuses Enslaved By Their Own Mothers And the President Who'll Set Them Free

Paperwight points out that in the context of conservative judicial theory "Dred Scott" means "Roe V. Wade." I actually knew that. If you look at dissents from Justice Scalia in particular on abortion cases you'll see that he often makes the comparison. The point the anti-Roe justices are trying to make is not that Roe was decided in a procedurally similar manner to Dred Scott, but rather that Roe is, like Scott, a sufficiently odious precedent that the Court ought to have no qualms about simply overruling it. I was only pretending to be mystified by the reference because I thought saying it made the president look silly and I wanted to make him look sillier. It was designed as a signal to his base that, hopefully, would be missed by pro-choice white women who might feel pretty threatened by the prospect of a president threatening to appoint an anti-Roe court. In some ways, I think the president needn't have been so subtle. I fear that the choice lobby may have cried wolf one time too many on the Roe front (I was certainly promised that if Bush won in 2000 we'd be back to the coathanger abortions) to convince anyone. That's too bad, since the prediction as of 2000 was very plausible, and the lack of Supreme Court retirements in the past four years has been pretty odd. Surely all nine of them won't make it until 2009.

Literally, though, what Bush promised was to only appoint anti-slavery justices. The fact remains that that was an astoundingly silly thing to say on national television in response to a question about an important issue and the president deserves to be mocked for it.

UPDATE: The point of saying "pro-choice white women" is not that there are no pro-choice women of color, but that women of color aren't swing voters so neither candidate's message involves subtly crafted appeals to them. Kerry's so strongly with women of color on economic issues and on ethnicity-specific issues that there's no contest here. And the right to choose has, indeed, suffered under Bush, but in 2000 pro-choice folks really were saying that Bush would appoint an anti-Roe majority to the Supreme Court. This, obviously, hasn't happened. That makes it harder to use this argument again, even though I think it's true.

October 10, 2004 | Permalink


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» slavery (=abortion) was legal from coffee grounds
Not entirely surprisingly we discover that Bush's reference to the Dred Scott case was not a lame attempt to prove he was on the side of the black slave, or a pander to the St. Louis Historical Society. It was... [Read More]

Tracked on Oct 10, 2004 1:11:37 PM

» Dred Scott from Julie Saltman
The important point in this whole debate over Dred Scott=Roe and judicial activism is this: Why have the Republicans convinced their base that liberal judges are the ones who engage in judicial activism? The most egregious example of judicial activis... [Read More]

Tracked on Oct 10, 2004 4:14:48 PM

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Sweet Blessings, a new Christian-based online shop featuring cookie bouquets, candy bouquets and gift baskets, opens with a campaign to donate a portion of all profits to Habitat For Humanity. The devastation of hurricanes Katrina and Rita, while not a... [Read More]

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» Gift Basket from Tom Jamme's Blog
Sweet Blessings, a new Christian-based online shop featuring cookie bouquets, candy bouquets and gift baskets, opens with a campaign to donate a portion of all profits to Habitat For Humanity. The devastation of hurricanes Katrina and Rita, while not a... [Read More]

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Could it be that Sandra Day O'Connor has realized that retiring under Bush is not at all as wise as it seemed to her in 2000?

Posted by: jerry | Oct 10, 2004 3:58:40 AM


Just read this at a conservative blog:

By: krempasky
Posted On: Oct 9th, 2004: 19:26:54

The swift vets are NOT done, friends
I can't say a lot...but I wonder.
Mr. Kerry, do you have some rowdy friends?
Better yet, are you ready for some commercials?

Posted by: Sydney Carton | Oct 10, 2004 4:31:49 AM

"I actually knew that"... gosh Matt, you sound like W when he says knows Osama attacked us. Of course you knew that! ;)

You might want to edit to remove the "white" from "pro-choice white women" since choice affects all women (and men!) regardless of color.

Curious to see whether this 'gaffe' gets filed under 'Stupid' (current CW) or 'Evil' (as Paperwight suggests by cracking the code mainstream).

Posted by: NoMoreYears | Oct 10, 2004 4:41:41 AM

Sadly, 10+ years without a nomination battle have made the issue deceptively dormant.

A lot of people seem to think Roe has been around for so long, it's safe to ignore the threat.

Other less honest people, like to point out Souther as an example of the uncertainity in the process.

As if the right wing would ever make that mistake again. Particularly with an uber-conservative president in his second term.

Posted by: Ron | Oct 10, 2004 7:40:26 AM

not related directly --

but if stem cells can be used for cloning entire organisms -- why not use some of the stem cells to recreate the destroyed embryo (and put it back in the freezer or whatever) and use the other stem cells to cure Parkinson's disease.

Posted by: nwoknu | Oct 10, 2004 7:46:23 AM

Pro-choice women of color are not likely voting for the president to begin with. I assume that's why Matt used the descriptive "white" -- those women who might actually consider voting for him in the first instance.

Posted by: Barbara | Oct 10, 2004 8:23:37 AM

Matt, if you think that nothing bad has happened to abortion rights in the last four years, and if you think the pro-choice lobby was somehow crying wolf, you have not been paying attention to the actual facts on the ground. The pressure on providers is huge, there are swathes of the country where abortions are just not available, there are times and places in big cities where abortions are increasingly not available. Abortion providers have been killed, clinics are still threatened, and the attorney general does nothing. Its not all going to happen at the level of the supreme court. Its not all going to happen with a single stroke of the pen. Plenty of good people have pointed out that, of course, abortion and gays are bush's new black threat to mobilize his base. But just because bush himself is probably not interested in pushing through any final legislation on abortion (because it would cost him the carrot he uses for his fundy base) is no reason that women on the other side should "relax" and not worry about what comes next. I'm a middle aged woman with two kids, I'd love to have a third, and I have decided I can't risk getting pregnant again because I'm not certain, even living where I am and with the money I have, that I could get an abortion if I needed it. The pro choice people aren't crying wolf. Its people like you who continue to believe, against all evidence, that bush co are not as ruthless and as self serving as they are. They will do anything to hold onto power, and they will certainly sacrifice my rights and my daughter's rights if it helps them do it.


Posted by: aimai | Oct 10, 2004 8:39:02 AM

Not one of your better posts Matt, (I hope you take criticism better than W ;-). "I actually knew that" just comes off as snide. And after your recent dissing of academic bloggers (and academic bloggers to be), look out-we're out for blood.

Literally, though, what Bush promised was to only appoint anti-slavery justices.

Yeah, and by the same logic when scum-sucking pig Vito Genovese ordered fellow scum-sucking pig fucker Carmine Galante to take Carlo Tresca "for a ride" he literally meant just a nice drive around the Henry Hudson Parkway.

And no, the president does not deserve to be mocked for it as that noly serves to obscure the real meaning of Bush's citing it. Which is exactly what Rove wants. Voters, women who value their autonomy and men who value women, should be made aware of what Bush really meant.

Posted by: Barry Freed | Oct 10, 2004 8:41:53 AM

"Sadly, 10+ years without a nomination battle have made the issue deceptively dormant."

Yup. And the floodgates are about to open.

"the lack of Supreme Court retirements in the past four years has been pretty odd."

Not odd at all.

Bush v. Gore ensured that none of the conservative justices could retire over the past four years without causing a firestorm.

Posted by: Petey | Oct 10, 2004 8:43:45 AM

What Petey said

Posted by: Barry Freed | Oct 10, 2004 8:48:46 AM

Yes, but before Friday night, were we really sure that Bush is anti-slavery? Are we still sure?

Posted by: abf | Oct 10, 2004 9:42:54 AM

Petey, I don't think Matt meant "unexplainable" when he said "odd." He was just trying to say that it was unusual.

Aimai and Barry Freed, meanwhile, seem to have just misunderstood his point completely.

Posted by: JP | Oct 10, 2004 9:52:27 AM

Agree with Aimai. Inside the Beltway everything may be hunkey-dorey but in the rural areas they are simply shutting down medical access. In large parts of the country this means women can't even buy birth control.

This isn't just birth control. Rural healthcare is rotten in a really basic way, fiefdoms of unqualified people wearing white who can't even spell the unfamiliar words (like 'codeine') they use. But the problem is especially acute in contraception, which is a major life decision for young people.

Unplanned pregnancies are part of the major or possibly only social system of ruraltania, encompassing foster care, the prisons, the courts, police and social welfare systems that take children from their parents and often imprison any adults who could earn a living. The system creates and controls a class of permanently poor people, incidentally creating a labor pool of day-workers and piece-workers suited to the needs of the rural oligarchy.

It's a major social problem.

Posted by: serial catowner | Oct 10, 2004 9:54:11 AM

Why can't Kerry put it in simple terms, like "You elect this man, and a woman's right to choose will be gone!"?

Posted by: Bob H | Oct 10, 2004 9:59:27 AM

I'm with Aimai and Serial. I would add that Matt doesn't yet have a sense of the magnitude of the onset of Christian bigotry and ostracization in the school systems across the heartland. While our host here has commented that the pledge battle isn't one worth fighting, my kids get asked every day at school if they're Christian. Teachers talk openly about the bible. The 9 year old daughter of a friend had a teacher ask the class to raise their hand if they believed in Jesus, and then followed with a discussion about how good Jesus was. There is no discussion of other faiths or beliefs. The level of intolerance that has penetrated the nation is far beyond what many people comprehend.

Also, as my own little probing exercise, when I encounter an pro-life single issue voter who says they will vote for Bush, I ask them to reconcile the loss of life for innocent Iraqi children who are casualties of this war. Generally, they've been unfazed, as if they compare a little innocent unborn white child to a dark skinned Iraqi. One is a sympathetic object, a life they can create, and the other is associated with the evil enemy.

Posted by: poputonian | Oct 10, 2004 10:26:26 AM

"Why can't Kerry put it in simple terms, like "You elect this man, and a woman's right to choose will be gone!"?"

Because pro-abortion doesn't produce net votes in swing states the way it did a decade ago. It's a similar reason why Kerry isn't running on common-sense gun control.

We win this on jobs, health care, and Iraq - not on the social issues.

Posted by: Petey | Oct 10, 2004 10:37:48 AM

The Dred Scott decision on its lonesome would be cause to snicker. It is, however, code for anti-Roe v Wade.

As an opponent to abortion, I hate to see arguments about it reduced to code words. It betrays a lack of moral seriousness.

My struggle as an anti-abortion liberal -- how can I vote Democratic etc etc -- usually gets decided by things like this. Republicans and the rich get abortions at the same rate as Democrats and the poor. Even Catholics get abortions at the same rate as the population as a whole. Etc. It's hard to see the anti-abortion political argument as serious in the light facts like this. Bush's use of a code phrase and his support for the destruction of embryos following in vitro fetrilization undercuts his claim to the political support of liberal oppponents of abortion. It isn't a real opposition, it's an attempt to win by ghettoizing voter blocs.

Posted by: Jeffrey Davis | Oct 10, 2004 11:06:31 AM

Jeffrey, I think you're right that the Bush campaign is more interested in votes than in overturning Roe v. Wade. But I don't think it's because their opposition to abortion is insincere (Bush's isn't). Rather, it's because 1) the Democracts won't let a Justice on the court who will overturn Roe, and 2) if the Republicans did succeed in overturning Roe, they would do lasting damage to their standing among women voters.

Posted by: Aron | Oct 10, 2004 11:17:42 AM

And it's even beyond that; the point is not just to compare Roe with Dred Scott but to compare abortion with slavery in general.

But you're right that it's an ineffective technqiue. It makes him look silly, and will only appeal to the most knowledgable and politically aware part of his base anyway. Too clever by half.

Posted by: Scott Lemieux | Oct 10, 2004 11:19:42 AM

> I actually knew that. I...

OK Mr. Cheney! ;-)


Posted by: Cranky Observer | Oct 10, 2004 11:27:40 AM

That's not crying wolf.

It just so happened that nobody retired.

If a pro-Roe justice had retired, Bush would certainly have nominated an anti-Roe Justice and overturning Roe would be imminent.

The threat that Roe would be overturned has always been predicated on a pro-Roe justice retiring. The argument that there should be a Democrat in the White House is just as valid now as it was in 2000.

Its been so long since there was a live fight over this that we've forgotten about this but that is not the same as crying wolf.

Posted by: Bruce Norenco | Oct 10, 2004 11:45:48 AM

One reason W. may have mentioned Dred Scott is just that the debate took place in St. Louis Missouri, and the first two trials of the Dred Scott case took place in the Old Courthouse in St. Louis, one of the oldest buildings in the city. But taken together with his promise to appoint judges who are "strict constructionists" I think it's clear it was also an anti-abortion reference. Orcinus has two good posts on the relation of "constructionism" to anti-abortion:

Post #1
Post #2

Some excerpts:

Voters need to understand just what Bush means when he talks about placing "strict constructionists" on the court. The "strict constructionists" who favor overturning Roe v. Wade, for example, do so on the basis of the argument that the right to privacy -- which forms the foundation of that ruling -- doesn't exist. You see, because this basic right is not explicitly spelled out in the Constitution, even though it is woven into its very fabric, these judicial activists of the conservative stripe claim that it's not innate to the rights Americans enjoy.

Taking away the right to privacy, of course, has ramifications well beyond abortion. And so when George Bush tells Americans that he intends to appoint these "strict constructionists" to the bench, they need to ask in return whether George Bush believes in the right to privacy.


You see, "strict construction" is actually just another term for a kind of judicial philosophy called "legal formalism":

Legal formalism is a view in jurisprudence and the philosophy of law. Legal formalists argue that judges and other public officials should be constrained in their interpretation of legal texts by their plain meaning and/or the intentions of their authors. Legal formalism can be contrasted to legal instrumentalism, a view associated with American legal realism. Instrumentalism is usually the view that creativity in the interpretation of legal texts is justified in order to assure that the law serves good public policy and social interests, although legal instrumentalists could also see the end of law as the promotion of justice or the protection of human rights. Legal formalists counter that giving judges authority to change the law to serve their own ideas about good policy undermines the rule of law. Another critique of legal formalism has been offered by the critical legal studies movement, which has argued that law is indeterminate.

Justice Antonin Scalia of the United States Supreme Court is noted for his formalist views about a variety of topics, particularly his view that the United States Constitution should be interpreted in accord with its original meaning and his view that statutes should be read in accord with their plain meaning.


Legal formalism was a dominant force in the American courts between 1865 and 1930. it reached its apex, probably, in the period 1890-1910, when it was predictable in its wholehearted defense of the interests of the ruling elite, the 1 percent of the population who controlled well over half of the nation's wealth.

The result was a society in which 60-hour workweeks for laborers in all fields of production was the norm; in which child labor was rampant and innately abusive; in which workers had no rights to unionize or otherwise organize; in which eight-hour days and weekends were utterly unheard of. Formal education was largely reserved for the children of the upper and upper middle classes.


Legal formalism is to jurisprudence what fundamentalism is to theology. It applies the same kind of backward logic, in which a position or belief is arrived at beforehand, and then evidence is gathered from a narrow reading of select verses to "prove" it. Its outcomes, as a result, are extraordinarily manipulable. While formalists are fond of decrying the "activism" of legal realists, the reality is that their own brand of legal philosophy was every bit as prone (if not more so) to activism on behalf of narrow interests.

Formalism, in fact, is responsible for some of the great travesties of American jurisprudence. It was, in fact, the ruling philosophy in the much-reviled Plessy v. Ferguson case, which maintained that a doctrine of "separate but equal" racial separation (later overturned by that notorious "activist" ruling, Brown v. Board of Education).

So it was noteworthy that Bush, in the process of explaining his support for "strict construction," trotted out the example of the notorious Dred Scott ruling of 1856 as an example of an "activist judiciary" ... Actually, Bush had it precisely backward. In fact, the Constitution at the time declared Negroes were not full citizens. And the actual Dred Scott v. Sandford ruling, if you take the time to read it, was an exercise in an extraordinarily blind kind of formalism:

... The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate [60 U.S. 393, 405] and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

Posted by: Jesse M. | Oct 10, 2004 12:07:41 PM

It seems to me that:

1 - Bush attacked Roe vs Wade without mentioning Roe vs Wade or abortion by name

1a - George Bush and his handlers do not believe Bush would benefit from attacking Roe vs Wade head-on

2 - Bush was trying to send a signal to the base the he hoped would be missed by most voters

3 - Most voters did miss the signal, but it was picked up in the left-blogosphere

Those lead me to my conclusion:

4 - As people who do not want Bush elected, it is important to make sure as many people as possible understand the signal for what it was and force Bush to address the issue head-on.

Posted by: Julen Santos | Oct 10, 2004 12:21:44 PM

Julien is exactly correct. Religious right candidates often run stealth campaigns. Many a voter has been surprised to wake up and find a creationist nut case elected to the local school board who is in favor of book burning, jettisoning sound science and defunding public schools in order to promote home schooling.

The way to combat the stealth candidates is to shine a bright light and publically ask the appropriate questions. "Did President Bush mean by his Dred Scott comment that he would only appoint justices that would overturn Roe V Wade?" This is a legitimate question that puts the candidate rightly on the spot. Voters deserve to know if a candidate disagrees with them on a fundamental issue. Mr Bush should not be allowed to have a staunchly anti-abortion position and deceive pro-choice voters about his true position. We need the MAINSTREAM MEDIA to ASK THE QUESTION.

Posted by: bakho | Oct 10, 2004 1:50:04 PM

"I was only pretending to be mystified by the reference because I thought saying it made the president look silly and I wanted to make him look sillier"

To defend MY, in this week marking the death of Derrida, is it more politically effective to make the President look stupid and incoherent in talking about slavery? Is revealing the "code" and setting the frame as "the President is sneaky, smart, and subtle" actually the more useful alternative? Which description would do him more actual damage?

I myself think that "the President is dumb" is less effective than "the President is a liar" but it is a close call. And they do kinda contradict each other. MY, if you have been reading him, emphasizes the drooling idiot description.

Posted by: bob mcmanus | Oct 10, 2004 2:32:54 PM

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