Everytime [right-wing conservatives] call for appointment of judges to the Supreme Court who will overrule or undermine Roe v. Wade, they assert that the matter should be left to the states. They assert that even if Roe v. Wade is overturned, it won't eliminate abortion in the states in which the duly elected state representatives do not take steps to outlaw the practice. But the Schiavo case reveals the true priorities of the right: they are happy to abandon the principles of federalism if the issue is related to questions of "life." But if they are willing to cast aside federalism in the Schiavo case, won't they be willing to do the same in the context of abortion? And if they are, won't that inevitably lead to attempts to pass federal legislation banning abortion? The actions of conservatives in the context of the Terri Schiavo case should give us pause as Bush nominates new justices to the Supreme Court -- especially, given conservatives' admitted goal of denying women's constitutional right to privacy and reproductive choice.

[Via The Decembrist]

Of course, the other significant case in which the right's supposedly unswerving commitment to Federalism (aka "States' Rights") was set aside was the Supreme Court's decision in Bush v. Gore, which served to elevate Bush to the White House in an extra-constitutional manner.

These are just two data points, but they really should be sufficient to indicate that the right is precisely as results-driven as they are always claiming that "activist liberal judges" are. (Call it an instance of the Freudian concept of "projection" if you wish, in which one's own attributes are projected onto one's adversaries). The right determines, by way of their ideological beliefs, what should occur, and then acts in whatever manner is necessary to bring about that result, regardless of whether it's in line with their expressed dogma about process.

Even as consistent and rigid a figure as Scalia will go against his own (vociferously and repeatedly expressed) principles when the stakes are high enough, as he did in Bush v. Gore:

Bush v. Gore is a clear embarrassment for Scalia. He signed on to a majority opinion that limited itself to the particular circumstances of the 2000 election battle, even though he has regularly argued that the Court should try to establish clear rules with broad applicability. In his [Virginia Military Institute] opinion, he wrote, "The Supreme Court of the United States does not sit to announce 'unique' dispositions. Its principal function is to estalish precedent -- that is, to set forth principles of law that every court in America must follow." Also troubling was his willingness to flout his conservative commitment to respect the integrity of state political processes. Gary Rosen, one of the few conservative critics of Bush v. Gore has written, "If judicial self-restraint means anything, it is that the justices should respect the perogatives of the other branches of state and federal governments, especially with regard to those 'political questions," as they are known in legal circles, that do not clearly fall within the Court's institutional competence and would needlessly involve it in partisan controversy."

Margaret Talbot
"Supreme Confidence: the jurisprudence of Justice Antonin Scalia"
The New Yorker (3/28/2005)
[not available online]

One of the regrets I have about the Schiavo affair, now that it's winding down to its inevitable and sad conclusion, the death of Terri Schiavo, is that the constitutionality of the law passed in the dead of night by DeLay & Company will apparently never be ruled on by the Supreme Court. I certainly understand why Michael Schiavo's lawyers would avoid prolonging the appeals process by bringing it up (which they might have if Judge Wittemore had approved the Schindler's request for a temporary restraing order in their first go in Federal court), but now we'll never know whether the bill was constitutional or not, and under what theory it might be found acceptable by the Court.

Update: From Jack Balkin:

It is not surprising that Congressional Republicans are fair weather federalists when it comes to these issues, and that they want the federal courts to get involved in right to die cases like Schiavo's. Few national politicians are seriously interested in federalism or judicial restraint when this would interfere with something they really care about. The Schiavo controversy demonstrates, I think, that pro-life values are likely to trump federalism values and concerns about an activist judiciary when the chips are down; they will even trump them when politicians think they can gain something from grandstanding, which appears to be what is going on here. Cultural conservatives may talk loudly about decentralization and rail against activist judges, but, like just like most liberals, they believe that activist federal judges who decide things they way they like aren't activist at all. They are judges who uphold important rights.

Finally, the Congressional Republicans' moves also suggest that if Roe v. Wade were overturned, the matter would not be left to the states, as so many pro-life politicians have advocated in the past, but would quickly become a fight over federal legislation outlawing abortion nationwide. Don't say I didn't warn you.

And from Lawyers, Guns and Money:

Anybody who thinks that overturning Roe would "return the issue to the states" a)doesn't have a fucking clue, b)is a Republican hack, or c)A little from column A, a little from column B. If you think that a Republican commitment to "federalism" will keep Congress from passing abortion legislation, I have some Randall Terry country albums to sell you. If you hear somebody making this claim, make sure to ignore everything they have to say on the topic (especially since they're probably going to tell you that overturning Roe would be great for reproductive freedom somehow.)

Addenda (5:22pm):

Welcome to those who've arrived here via the link from The Daou Report.

For those wondering why the situational Federalism I observe in the behavior of the right can be considered to be hypocritical, while situational ethics (one of the right's pet peeves about some of those on the left) can't be, it's precisely because the variability of situational ethics is part and parcel of the concept (that the proper ethical response is highly dependent on the specific circumstances) while Federalism is (supposedly) a rock-solid part of American conservative philosophy. It's the expressed absolutism of their philosophy, and their great disdain for situational thinking, that makes their actions hypocritical and subject to contempt.

In point of fact, everyone (including even Justice Scalia and Tom DeLay) behaves differently under differing circumstances, and what's right in one situation is frequently not right under drastically divergent ones. That's, most probably, a natural part of human behavior, and while being "natural" doesn't necessarily make it morally right, the unwillingness of the right to recognize and acknowledge this tendency, and to adjust their dogma for it, is simply another factor in why their ideology is so often out of sync with observed reality, and therefore inappropriate for dealing with it.