Ignorantia juris

Sometimes we run across arguments so incoherent that they are nearly impossible to categorize. For this reason, some time ago we added the category “plain bad arguments” alongside the list of commonly known logical fallacies. David Brooks most recent column (4/21/05) in the *New York Times* is a perfect example of the need for this new category.

In a very general sense, the argument is a causal one. Brooks argues that the cause of the current vitriolic atmosphere in the Senate is *Roe v. Wade* and therefore the only way to save the Senate is to “overturn *Roe v. Wade*.” But to point out–as we will in a moment–the ridiculousness of this claim would not do this awful piece justice. For in making the basic causal argument, Brooks interweaves so many other dubious, misleading and fallacious arguments that we fear not being able to capture them all. What follows is our attempt to make sense of what has to be one of the worst arguments to appear in the pages of the *New York Times* in recent months.

Any student of introductory logic knows that simple temporal precedence isn’t sufficient to establish causal efficacy or responsibility. But there is another trap to the causal claim. Sometimes one may be able to establish a causal relationship between two distant events only by grossly exaggerating the importance of some single cause and ignoring every other contributing causal condition. On the bright side, however, a little critical reflection and perhaps some counterexamples, usually shows such claims to be ridiculous. With this in mind, see how quickly the following claim unravels.

>Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the *Roe v. Wade* decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

The patronizingly exculpatory “inadvertent” does not alter or hide very well the speciousness of the claim that *Roe v. Wade* has *caused* a situation that now threatens to destroy the Senate.
For the sake of brevity, let’s pick out the first nine reasons that come to mind.

First, even if it is the case that much of the wrangling over judicial nominations in the Senate has to do with cases like *Roe*, it hardly seems reasonable to blame the decision, and its majority (there was a concurring opinion) author Justice Blackmun, for the zealots’ reaction. Of course, had seven of the nine justices not decided the way they did, then there would be no abortion clinic bombings. But this does not mean that the decision has *caused* the bombings. One might as well blame Christianity–had there been no Christianity, there wouldn’t be any abortion zealots.

Second, it might be more reasonable to believe that the behavior of the Republican leader of the Senate–who is the one considering the “nuclear option” of eliminating the filibuster and thus silencing a sizable Democratic minority–is the fault of, well, for starters, Bill Frist, the Republican leader of the Senate. In addition to Frist, his Senate colleagues, and the President who picks what many in the Senate find to be unacceptable candidates for the federal bench bear the obvious responsibility here. They are in the first place not dead. In the second place, they control the Senate, the House of Representatives, the Presidency, and to a large extent the federal judiciary. If they want, they can do what legislative bodies do in democracies: compromise.

Third, Brooks obscures the fact that Blackmun was one of seven (out of nine total) justices who found for the plaintiff in *Roe*. Of these seven, three (Berger, Powell, and Blackmun himself) were *Nixon* appointees, and two (Brennan and Stewart) *Eisenhower* appointees. The remaining two (Marshall and Douglass) on the majority were Johnson and Roosevelt appointees. The minority was split between a Nixon (Rehnquist) and a Kennedy (White) appointee. Why is this important? The majority was Republican, with most of them Nixon appointees. We might as well blame Nixon for damaging our democracy.

Fourth, one might wonder how a regular event in our constitutional democracy *damaged* our democracy. It certainly has the ring of the paradoxical. The court did what it has always done–it decided a constitutional matter. That’s its job. So to say that

>When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that’s always existed on this issue. These legislative compromises wouldn’t have pleased everyone, but would have been regarded as legitimate

is grossly to mislead the reader. Few matters in our constitutional democracy are settled forever. If the foes of *Roe v. Wade* really had the kind of democratic support they claim to, a constitutional amendment is entirely possible.

Fifth, to reinforce the ridiculous causal claim, Brooks joins the chorus of knuckleheads who scream “judicial activism” and “making law” at every decision they do not agree with:

>Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation.

It’s obvious to any one–including the *New York Times* which ran an editorial piece on the semantically vacuous charge “judicial activism” just this week–that “invented” really begs the question against the 7 majority justices. This raises the more fundamental question about Brooks’ causal argument: he is taking it for granted that the decision was wrong. But he has made no argument to that effect.

Sixth, so wrong was this decision in fact, that religious fanatics are justified in their fanatical response:

>Religious conservatives became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists.

Religious conservatives lost a constitutional battle according to the transparent workings of our democratic system. They are free to express their views; they are free to gather support for a constitutional amendment which would silence *Roe*; no one has forced them to perform abortions or have abortions performed on them; all of their constitutional rights are still in place. In addition, their perception of robed elitists–mostly Republican appointees–is simply wrong. Again, had the court to consider how religious fanatics would react to every matter they decide, we would all be held hostage to them.

Seventh, Brooks claims that *Roe* is so destructive and poisonous that it has harmed liberals as well. In one of his more shallow and transparent attempts at even-handedness, Brooks claims that

>Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views.

The distinction between “liberals” and “working-class” Americans is obviously a specious one, and Brooks does nothing to explain it. Or perhaps by “working-class” Brooks means “Christian Conservative.” Nonetheless, “imposing their views” smacks again of the empty rhetoric of “judicial activism.” Besides, considering the composition of the court at the time of *Roe*, Brooks’ liberals should draw the lesson that they can rely on Republican appointees to do their view imposing for them.

Eighth, *Roe* has caused its overzealous supporters to threaten our democracy:

>Unable to lobby for their pro-life or pro-choice views in normal ways, abortion activists focused their attention on judicial nominations. Dozens of groups on the right and left have been created to destroy nominees who might oppose their side of the fight. But abortion is never the explicit subject of these confirmation battles. Instead, the groups try to find some other pretext to destroy their foes.

That such zealots have much sway in Senate committees and on the Senate floor and everywhere else in government is more reasonably and responsibly attributed to the absence of senatorial cojones: don’t listen to them if they make unreasonable demands. That the house and the senate lack the spine to face the issue head on–because perhaps in all likelihood the constitutional amendment abolishing the right to choose would be soundly defeated–is their fault alone.

Finally, the causal claim begs the question one final time:

>Harry Blackmun and his colleagues suppressed that democratic abortion debate the nation needs to have. The poisons have been building ever since. You can complain about the incivility of politics, but you can’t stop the escalation of conflict in the middle. You have to kill it at the root. Unless Roe v. Wade is overturned, politics will never get better.

Aside from violent anti-abortion zealots, the nation has been having a democratic discussion of abortion since 1973. So it’s simply false to claim that it has “suppressed” democratic discussion of the issue. In addition to that, Brooks is ignoring the reasons the matter ended up in court in the first place: the Constitution needed interpreting on an important matter. If Blackmun was wrong to interpret the constitution that way–and some have suggested stronger grounds for his decision–then that is what Brooks is going to have to discuss. And wrongly interpreting the law is after all the only legitimate reason to overturn a law.