By Dave Andrusko
As you knew would be the case, pro-abortion Linda Greenhouse has written a number of columns on abortion for The New York Times prior to and since Justice Alito’s draft opinion, calling for Roe’s reversal, was leaked to Politico. The latest was “Abortion Questions for Justice Alito and His Supreme Court Allies”
Each seems more apocalyptic than the one before. We’re in the middle of a “war for the soul of the country”; “Now it’s the Supreme Court itself that has been weaponized”; and “The Supreme Court Gaslights Its Way to the End of Roe.”
What makes “Abortion Questions for Justice Alito and His Supreme Court Allies” different is that because her side has been losing steadily, Greenhouse’s rhetoric is even more inflammatory. She writes
I hope my law school friends and colleagues will forgive me, but I am tired of talking about the right to abortion in terms of constitutional doctrine. I have spent years, as they have, in urgent conversation about due process and undue burdens, extrapolating from the opacities of Planned Parenthood v. Casey, the 1992 decision that against all odds reaffirmed the essence of Roe v. Wade, thanks to three Republican-appointed justices who were supposed to do the opposite.
But “It hasn’t worked,” she wrote bitterly. “The message of the Alito draft is that the age of constitutional argument is over.” So much for constitutional niceties.
She also raised a question which, in answering, has a very ugly undertone:
Would the right to abortion have been on firmer footing had it been based on the Constitution’s explicit guarantee of equal protection, as Justice Ruth Bader Ginsburg famously argued, rather than the implicit right to privacy? Who cares? After all, as Maureen Dowd reminds us, the doctrine to which the justices in the court’s conservative majority, all of whom were raised Catholic, is responsive may not be the framers’ but the bishops’. And what about the doctrine of stare decisis, which calls on judges to stand by precedents? Justice Clarence Thomas, speaking this month at a judicial conference in Atlanta, let us know what to think about that. “We use stare decisis as a mantra when we don’t want to think,” he said.
Most of the Catholics on the court are likely looking less at what the framers of our Constitution meant and more towards what Rome wants. I wonder if she wishes she had that sentence back.
As for Justice Thomas, Greenhouse snipped off his comment from the larger point he was making in order to make hers. It’s from remarks Thomas made “before an audience of mostly judges and lawyers at the 11th Circuit Judicial Conference in Atlanta,” CNN reports.
On Friday [May 6], Thomas reiterated that he believes Supreme Court justices are obligated to take a fresh look at established precedent and shouldn’t be bound by the judicial doctrine called “stare decisis.” The legal principle is translated as “stand by that which has been decided” and is meant to reinforce stability in the law. Thomas has long been a critic of a strict reading of the doctrine.
“We use stare decisis as a mantra when we don’t want to think,” Thomas said Friday. But he noted that unlike lower courts, the Supreme Court is the “end of the line.” If the justices “don’t take a look at it, who does?” he asked.
Think about that for a second: “If the justices ‘don’t take a look at it, who does?’”
No doubt Greenhouse has already, or would, clobber Justice Alito for including in his draft opinion page after page of precedents which the Supreme Court has overturned over the years. Read his explanation of stare decisis:
Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ That is what the Constitution and the rule of law demand.
This doesn’t satisfy the Linda Greenhouses of this world; what could? But it is sound reasoning which should be addressed rather than dismissed out of hand.
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