Here is a coincidence which we would term providential, except that one doesn’t use that language. At least, if one does use it, it is shrouded in mystery. There is a great deal of swirl in the upcoming examination of Judge Samuel Alito, and some of it does a pretty complete circle. In 1985, Judge Alito wrote to President Ronald Reagan’s Attorney General, Edwin Meese, applying for a job. Quick ideological self-identification was in order, and Alito wrote, “The greatest influence on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater’s 1964 campaign.”
The senators who will be exploring Judge Alito’s views will of course happily welcome the opportunity to probe Alito on Baker v. Carr. That was the decision of the Supreme Court in 1962 that ruled unconstitutional electoral districts which were fashioned other than under the auspices of one- man-one-vote.
It is generally assumed that any electoral practice detached from one-man-one-vote was an abomination. If the Supreme Court had the authority to do so, the citizens of Rhode Island, beginning tomorrow, would be without two senators in our bicameral legislature: There is no affront in constitutional practice, save possibly the singularity of the Queen, that weighs so disproportionately against equality of votes.
But Baker v. Carr became, overnight, absolutely sacred, and the examiners will want to know whether Mr. Alito also thinks it sacred. When in 1986 Antonin Scalia appeared before the Senate committee he said, with that finality with which he is comfortable speaking from time to time, that he was not going to give his thinking on any constitutional question, since he thought this wrong for an appointed judge to do, just as Abraham Lincoln thought it wrong to do, and even treacherous.
The point wasn’t pressed, but pretty soon the term “super-precedent” came into use. Some scholars treat Baker v. Carr as a super-precedent, deserving the august deferral that attaches to Roe v. Wade or Brown v. Board of Education.
Simultaneously, a quarrel has been ignited on the matter of abortion. This arose when Professor Jeffrey Hart quoted from his history of National Review magazine in the Wall Street Journal. He said there that it was the women’s movement of the 1960s and 70s, and not merely the musing of Supreme Court justices, that produced Roe v. Wade. Challenged on this, Hart quoted Edmund Burke’s 1791 “Thoughts on French Affairs.” Burke said there that he “[had] done on the subject” of the French Revolution.
Meaning that his thrust against the French Revolution, published one year earlier (Reflections on the Revolution in France), was no longer to be thought relevant? That exactly was the position of Matthew Arnold, who greeted Burke as having done an about-face, or at least as having resigned himself to the French Revolution as a fait accompli. In “Thoughts on French Affairs,” Burke was arguing that the English should make their peace with the new order lest they appear “perverse and obstinate.”
Off to the stacks for more on that question. Roger Kimball, the learned, dogged, and indefatigable editor of The New Criterion, has written that “Burke wrote ‘Thoughts’ in 1791; he lived on until 1797, and the disaster of the French Revolution was never far from his thoughts–or his activities as a politician and rhetorician.” Conor Cruise O’Brien judged that Burke “had seen that the French Revolution was potentially as explosive an event, in social and political and military terms, as the Reformation had been.”
These weighty questions are being asked in arenas large and small. Would Edmund Burke have interpreted the “right” to an abortion as issuing from the rights of man? Mr. Kimball argues that the great events of the last part of the 20th century touching on women’s rights tended towards a denial of women’s right to reproduce. To bear a child is thought in many quarters to be an economic nuisance, a domestic imposition, an aggressive sociological act.
Jeffrey Hart’s book is called The Making of the American Conservative Mind. Mail intended for Judge Alito can be sent to the Supreme Court, marked, “Please hold.”