Bench Memos

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More Biskupic Confusion


In the course of an otherwise interesting article on the role that luck and timing play in who gets selected for the Supreme Court, USA Today reporter Joan Biskupic states:

The justices support abortion rights by a 5-4 vote. An Obama appointee could enhance that margin allowing abortion if a vacancy is created by one of the five conservative justices.

A few elementary points:

1.  The divide over Roe v. Wade is over whether or not there is a constitutional right to abortion. That issue is obscured by the sloppy phrase “support abortion rights” and even more so by the phrase “allowing abortion”. The latter phrase misleadingly implies that those, like Justices Scalia and Thomas, who believe that there is no constitutional right to abortion would invalidate laws that allow abortion. (For more on this, see this essay of mine.)

2.  Chief Justice Roberts and Justice Alito have not made clear their positions on Roe.  I very much hope and expect that they, as sound jurists, will oppose it, but it’s an error for a reporter to inform readers that their position is known.  

3.  As I have previously explained (see point 4 here), it’s absurd to call Justice Kennedy a “conservative justice”. If shorthand political labels must be used, there are at most four, not five, conservative justices.  And it’s only a vacancy created by one of those four that would enable an Obama appointee to increase the pro-Roe margin.

Why can’t a reporter who has covered the Supreme Court for so long understand these elementary points? Why couldn’t she have written, say:

Five of the nine justices support a constitutional right to abortion. An Obama appointee could increase that number if a vacancy is created by one of the four conservative justices.

Tags: Whelan


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