Andrew Sullivan prompts our jaw to drop on (and to) multiple levels with this post, which I excerpt more or less fully:
THAT DRED SCOTT REFERENCE: When the president said he wasn't going to appoint justices who would write a decision like Dred Scott, I was puzzled. I didn't know slavery was still a live issue. But I was reassured, I guess, that Bush wasn't intending to put pro-slavery jurists on the court. But I was missing something. It seems it was a coded reference to repealing Roe vs Wade.
Well. Andrew provides a link to the Daily Kos, from which we expect little more than invective (and they do not disappoint! We will have fun with them shortly.)
From Andrew, I would expect at least a passing familiarity with common conservative arguments. Pro-lifers have made the analogy between themselves and pre-Civl War abolitionists for years; however one feels about that argument, it does not seem unreasonable to expect political commentators such as Andrew Sullivan to be aware of it.
Secondly, the Dred Scott decision is often cited as the Gold Standard for morally obtuse Supreme Court decisions. Consequently, any group that feels aggrieved by a particular Supreme Court precedent is likely, at some point, to cite Dred Scott. This certainly includes the pro-life crowd, as the Daily Kos points out. However, one might note that the Kosmos is guilty of a bit of backwards reasoning - pick a group with legal issues, and I bet you will find they refer to Dred Scott at some point.
Oh, that is not much of a bet - we could find references to Dred Scott amongst the folks unhappy with the Supreme Court's positions on flag-burning, school prayer, or the posting of the Ten Commandments.
And I have good news for Andrew - Bush's "Dred Scott" reference may actually have been a coded attempt to reach out to gay-rights activitists! No, really - perhaps Andrew missed this commentary:
The Village Voice on gay marriage versus civil unions: There's a larger problem: the civil union response compromises the United States constitution, even if gay couples are afforded all the tangible rights and benefits of marriage in all 50 states. The obvious analogy is the "separate but equal" doctrine that once governed civil rights in the racial context. In Plessy v. Ferguson, in 1896, the United States Supreme Court upheld a statute that segregated train passengers by race, claiming that the Fourteenth Amendment was designed to enforce "political equality" but not "social equality." Plessy's doctrine of separate but equal has long since been abandoned, and is considered a stain on America's past. The two-tiered approach to marriage revives this discredited idea.
...Justice Harlan's lonely dissent in Plessy remains the enduring response to the idea of separate but equal—whether for blacks or gays. Harlan rejected distinctions "implying inferiority in civil society" because "there is in this country no superior, dominant, ruling class of citizens. There is no caste here."
...In his Plessy dissent, Justice Harlan prophesied that "the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case." To acquiesce in the caste system entailed by a marriage/civil union distinction is to fall on the Plessy and Dred Scott side of history. A single-tiered marriage regime is the only solution consistent with this nation's commitment to a caste-free society. The time for this solution is now.
Or perhaps this NY Times opinion piece calling for the Supreme Court to overturn Bowers will be a useful illustration:
There can be no real doubt that Bowers will eventually be relegated to the same dustbin of legal history as Plessy v. Ferguson, which upheld separate-but-equal racial classifications, and the Dred Scott case, which required the return of fugitive slaves.
Or here, in an article wacking Scalia's dissent from Lawrence v. Texas as being in the spirit of the Dred Scott decision.
Now, is anyone convinced that Bush was reaching out to Andrew Sullivan? I sense your skepticism. But I also have a constructive suggestion here - if the Daily Kos crowd doesn't even know what Bush is talking about on Day One, let's not take for granted that they are fully capable of cracking his code on Day Two.
Now, a bit of history - Abraham Lincoln re-launched his political career with a detailed "original intent" analysis of the Dred Scott decision. Briefly, one (often overlooked) part of the decision was the finding that the Federal government could not regulate slavery in the Territories. This struck down the Missouri Compromise of 1820.
Lincoln tracked the political histories of the Founding Fathers to demonstrate that a fair reading of their original intent would show the reasoning behind this decision to be false.
How about that? Old Abe himself provided a textbook example of analysis by original intent. Now, I am not going to suggest that Bush's explanation of Dred Scott during the debate will be going into any legal textbooks, but since Bush was talking about the importance of nominating judges who are strict constructionists, his case selection was on point.
My take? For what it's worth, my first reaction upon hearing "Dred Scott" was "The pro-lifers will like that". I think it is fair to say that Bush was giving a shout-out to all his friends on the right who have a grievance with the Supreme Court, with the right-to-lifers foremost among them. However, to extrapolate from that to say that Bush is committed to appointing judges who will overturn Roe v. Wade is a stretch.
MORE: We want to tweak the Daily Kosmos a bit before we finish. "Kynn" concludes his/her post with this:
It's unmistakable, once you know the code words. There's no other reason he said it, that damned fundamentalist fascist.
I guess the fundamentalist fascist is Bush (really, Andrew, this is where you send us for insight these days?). However, because they are nothing if not droll, in the course of their supporting research the Kosmonauts send us to this site. We find an anti-abortion author who prefers to analogize abortion to the Holocaust, advocates advancing the argument on moral and ethical, rather than strictly religious, grounds, and has a section headed "Religious Right-To-Life Totally Wrong". For a fundamentalist fascist, Bush has some unexpected support.
CAN'T STOP NOW: Here a pro-lifer relates Dred Scott to the Supreme Court's Stenberg decision, which struck down Nebraska's ban on partial birth abortion (I apologize for the inflammatory language - I know lefties are marketing the partial birth ban under some other term, but I can't for the life of me remember what it is.)
And Scalia made the same connection in his vigorous dissent from Stenberg. Gee, maybe the coded message is that Bush will look for judges that will uphold the partial birth ban.
LAST BIT OF FUN: It is not fair to smite Andrew exclusively for this - the puzzlement over Bush's Dred Scott reference was widespread. Chris Suellentrop is baffled but wry; you can't spell "LA Times" without "At Sea"; and no clues at the Daily News.
But the Comic Classic was provided by the DNC, which trotted out Congressman John Lewis to mock what he perceived as an odd attempt by Bush to reach out to blacks.
Finally, Tim Noah steps forward as a code-breaker, and he is pretty sure Roe v. Wade is the answer. Of course, he makes the same mistake as Kynn at Kos - if you only look for connections betwen Dred Scott and Roe, that is all you will find.
But they are having fun, and they can later astound their friends with their tales of adventure on the right side of the political spectrum, so no harm done.
But who are you going to believe, these guys, or me - c'mon, I'm your wind-breaker on this.
UPDATE: Ahh, "windtalker".