Bench Memos

NRO’s home for judicial news and analysis.

Empirical Data


In Gonzales v. Carhart, Justice Kennedy’s majority opinion made this common-sense observation:  “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained” and that “[s]evere depression and loss of esteem can follow.”  In her dissent, Justice Ginsburg (joined by, among others, Justice Stevens) objected that “the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence.”


In an opinion issued today (Tennessee Secondary School Athletic Association v. Brentwood Academy), the majority, in rejecting a First Amendment speech claim, states:  “We need no empirical data to credit [the athletic association’s] common-sense conclusion that hard-sell tactics directed at middle school students could lead to exploitation, distort competition between high school teams, and foster an environment in which athletics are prized more highly than academics.”  And how did Ginsburg and Stevens respond to this naked invocation of common sense?  Well, it was impossible for Stevens to respond since he authored the passage, and Ginsburg (and the other Gonzales dissenters) joined Stevens’ opinion.


Will liberal judicial activists ever apply to abortion and to their other favored causes the same principles that they apply elsewhere?

Tags: Whelan


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