Bench Memos

NRO’s home for judicial news and analysis.

Travel Perils


One of the perils of business travel is encountering an article by Supreme Court reporter Joan Biskupic in the USA Today deposited outside my hotel room.  Alas, that peril befell me this morning in the form of Biskupic’s musings on how the presidential contenders might reshape the Supreme Court.

As usual, Biskupic relies almost entirely on political labels—“moving the Supreme Court to the right”, “liberal wing” and “conservative wing”, “ultraconservative”, “split on social policy issues”—that obscure from the reader the grand divide between those justices on the “liberal wing” who seek to recast their preferred policies in the guise of constitutional rights and those on the “conservative wing” who recognize that the Constitution largely leaves issues to the democratic processes to be decided by the people’s representatives in the state legislatures and in Congress.

Moreover, Biskupic misuses her political labels.  She tells us that “conservative justices have a slight edge”   and that Justice Kennedy is “conservative but sometimes forms a majority with the liberals.”  “Sometimes”?  Planned Parenthood v. Casey, Lawrence v. Texas, Boumediene, Rasul, Hamdan, Lee v. Weisman, the various Eighth Amendment/death penalty cases, to name just a few off the top of my head. 

Biskupic’s article focuses heavily and one-sidedly on Roe—she starts consecutive paragraphs with quotes stating that Roe “is at the top of the list” of what’s at stake and (Obama’s quote) “probably hangs in the balance”—but nowhere explains clearly to the reader that overturning Roe would restore abortion policy to the democratic processes, where the people of each state could decide, through their legislators, whether to have protective or permissive abortion policies.  She instead wastes lots of space repeating the minor detail that Sarah Palin is pro-life:  her “passionate opposition to abortion has energized conservative Republicans”; she “is a vocal critic of abortion rights”; she “condemned” an Alaska supreme court ruling invalidating a parental-consent law.

Biskupic also risibly states that if “Democrats make significant headway in the Senate,” Obama “might have the leeway to push through a relatively liberal nominee.”  I doubt very much that anyone whom Obama nominates will be only “relatively liberal” (except to those who consider Justice Kennedy a conservative).  More importantly, it will likely be very easy for Obama to get a hard-left nominee confirmed.

And so on.  What a way to start the day.

Tags: Whelan


Subscribe to National Review