Saturday, June 25, 2022




Here are some thoughts on today’s landmark Supreme Court decision, in no particular order:

* It represents genuine courage. Politicians and others often pat themselves on the back for being “brave,” usually when nothing much is at stake. In this case, we had not just a maelstrom of hysteria but an actual assassination attempt, encouraged if not explicitly condoned by the Democratic Party. Yet five justices stood strong to uphold the rule of law. They deserve our gratitude and above all, our prayers for their safety. Assassination is a real possibility, as the Democrats try to regain control of the Court while Joe Biden is still in office.

* No one seriously defends Roe v. Wade. When it was decided, it was greeted mostly with shock. A poll of law professors found, as I recall, that 85% thought it was wrong. Roe was decided in large part on the basis of an understanding of pregnancy that was refuted by subsequent scientific developments. By the time of the Casey decision, no one could defend the logic of Roe, and the court did not attempt to do so. There is no intellectually serious argument in favor of Roe.

* Several justices in the Casey case, to their everlasting shame, explicitly predicated their votes on the political implications of overruling Roe. Today, that didn’t happen.

* Why is Roe so important to liberals? It is an interesting question. Their ability to get abortions if they want them will not be significantly impacted by today’s decision. Worst case, they drive to a nearby state, and most employers will pay their costs. (Has no one else pointed out how self-interested this is on the part of supposedly altruistic employers? Paying for an abortion is vastly cheaper than paying for a full pregnancy and childbirth, along with several months’ absence from work.)

* Most liberals now express what Scott has called the sacramental view of abortion. Much like slavery in the years leading up to the Civil War, abortion proponents have gone from supporting abortion as a necessary evil (“safe, legal and rare”) to touting it as a positive good. For them, it is important that abortion be a prized constitutional right of which we can all be proud–much as the LGBTwhatever “community” insists that what they call queerness is something to be proud of. Simply tolerating abortion is not enough to salve liberals’ consciences or, more likely, self-images.

* Justice Alito’s majority decision is excellent, but as is so often the case, Justice Thomas’s concurrence is the most interesting and bracing opinion. Justice Thomas has been arguing for years, I think correctly, that “substantive due process” is a made-up concept with no support in the text of the Constitution. And one, moreover, that has been misused by both conservative and liberal courts to promulgate bad decisions that represent nothing more than political preferences.

* Thomas wants to revisit a number of decisions that the Court has wrongly predicated on this fictitious concept–the idea that “due process” refers not merely to procedural rights, but to an unspecified charter of substantive rights that is defined only by the justices’ political leanings. This is why you see headlines about Thomas wanting to reopen rulings on gay marriage, contraception, and so on. Don’t worry: the Constitution doesn’t say anything about contraception, but no state is going to ban it, just as no state is going to legalize murder, which, under the Constitution, the states could do. We are, after all, a democracy.

* We have all gotten used to the idea that the federal courts exist not only to apply the written documents that define their authority, the Constitution and federal statutes, but to apply their own policy judgment when they think Congress or a state legislature has gone badly awry. In the last sixty years, at least, the Supreme Court has used this supposed power to act as a liberal super-legislature, imposing doctrines that couldn’t pass Congress or various legislatures. Thomas wants all of this to end: no more made-up “rights,” only a fair interpretation of what the written documents actually say. If you don’t like what they say, you can undertake to amend them. This is known as the rule of law, and it is anathema to the Democratic Party.

* In the years to come, it will be interesting to see how many of the Court’s justices will vote with Thomas to do away with substantive due process. My guess is that, when the time comes, there will be several votes in favor. Possibly a majority.

* Most commentary on the Dobbs decision is, not surprisingly, incompetent. If you didn’t know better, you would think that abortion had suddenly been made illegal across the country–which, for better or worse, is obviously not the case. The foreign press is particularly guilty here. Almost all foreign reporters fail to understand our federal system and totally misapprehend the effects of today’s decision, or the logic behind it.

* I have already gotten 10 or 15 emails from Democrats, fundraising off today’s decision. Democrats obviously hope that issues like abortion and guns will motivate their voters to look past inflation and the inept Biden administration and turn out for more leftism in November. Today’s decision may, indeed, be a political plus for the Democrats. But the virtue of the Dobbs opinion is that it didn’t turn on such considerations.

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