By Dave Andrusko
Ed Whelan writes “This Day in Liberal Activism” pretty much every Monday through Friday at National Review Online. For August 3, he reminds us that elections do matter:
1993—By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White. Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg.
Mr. Whelan’s point was that Justice Ginsburg was, shall we say, on the left side of the political spectrum. In addition to her hosannas for abortion, she held opinions on many issues that, to put it mildly, only a sliver of the American public agree with.
The 29th anniversary of her confirmation also reminds us of President Trump’s historic nominations of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Their confirmations made reversing Roe v. Wade, which seemed almost unthinkable just a few years before, possible.
Justice Alito wrote Dobbs v. Jackson Women’s Health Organization. It was and is a remarkably cogent, carefully reasoned analysis. I’ve quoted from Dobbs on numerous occasions; it is that good. Here are two examples:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
The right to abortion does not fall within this category.
Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.
The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people. Rather, wielding nothing but “raw judicial power,” the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.
Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” Together, Roe and Casey represent an error that cannot be allowed to stand.
“Together, Roe and Casey represent an error that cannot be allowed to stand.” Amen to that.