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Fair Weather Friend of the Court

Senator Specter passes the buck to the courts on one of the major issues of the day.

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On the other hand, a strong affirmation or rejection of the president's claim would dramatically affect judicial review. The Supreme Court has repeatedly shown (most recently in its Hamdan decision) that, as per Justice Robert Jackson's famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the court will provide greater deference to the executive's power when Congress agrees with the president's interpretation. Conversely, presidential power is at its lowest ebb when the president acts contrary to Congress' will. But Specter would have no part in this.

THE PRESIDENT'S "INHERENT AUTHORITY" is not the only issue that Specter wants the courts to resolve for him. Abortion was, until this year, Specter's favorite judicial issue. Throughout the confirmation hearings of Justices Roberts and Alito, Specter insisted that Roe v. Wade had become a "super precedent" (even going so far as to comically dub it a "super-duper precedent") that should not be subject to judicial reversal.

Reversal of Roe v. Wade would return abortion to the state legislatures--and would likely also make it an issue of political debate at the federal level. Throughout his tenure in the Senate, Specter has fought to keep that political mess in the courts. Although he now cloaks his argument in the rhetoric of respect for prior judicial decisions, Specter's stance on the abortion issue was evident long before Roe became anything resembling a "super-duper precedent." The Washington Post reported in March 1992, before Planned Parenthood v. Casey upheld Roe, that Specter peppered his primary campaign's stump speech with a warning that abortion is the "most divisive issue since slavery" and that, as the Post summarized his remarks, it "has no place in political campaigns."

If Specter had to take a strong legislative position on abortion, his political fortunes would not be assured in Pennsylvania. This is the state where he struggled to beat back a primary challenge from Pat Toomey in 2004, and where two pro-life candidates, Republican Sen. Rick Santorum and pro-life Democrat Bob Casey Jr., are fighting for the other Senate seat. So long as Specter can commit the issue to the courts, citing only the neutral principle of stare decisis, his political life is made significantly easier.

BUT SPECTER'S LOVE AFFAIR WITH THE COURTS is not without its stormier moments. Despite his stated position in the surveillance and abortion debates, Specter is a fierce critic of the courts when they contradict him on politically safe issues. Ironically enough, this also manifested itself in the same Roberts confirmation hearing where Specter lauded Roe v. Wade's precedential value.

In that hearing, Specter sharply rebuked the Court's decisions in United States v. Lopez and United States v. Morrison, which limited Congress' ability to rely on the Constitution's Commerce Clause to pass regulations affecting purely intrastate matters. These decisions infuriate Specter, who insisted in the hearing that the Court had belittled Congress' "method of reasoning," and that the decisions represented "the denigration by the court of congressional authority." Right or wrong, Specter seems to reject utterly the Court's contention that Congress cannot be the judge of its own power. If the Court overturned Lopez and Morrison tomorrow, Specter would shed not a tear, even through Lopez, now 11 years old, is older than Roe was when Specter began his Senate tenure in 1980.

Specter's eagerness to abandon his commitment to judicial supremacy and stare decisis isn't limited to the Commerce Clause. In 1993 he co-sponsored the Religious Freedom Restoration Act (RFRA), a bill explicitly passed to reverse the Supreme Court's interpretation of the First Amendment's free exercise clause in Employment Division v. Smith. (Not surprisingly, the high court struck down RFRA, holding that Congress couldn't overturn the Supreme Court's interpretations of the Constitution.)