Bench Memos

NRO’s home for judicial news and analysis.

NYT’s Insipid Reflections—Part 1


It’s worth reading New York Times editorials every so often just as a reminder of the level of the quality of argument of that paper’s editorial page.  This piece from Friday—“Reflections on the New Abortion Ruling and the Roberts Court”— by Dorothy Samuels, a member of the paper’s editorial board, provides a good case study.  In this and a subsequent post, I will address (in the order in which they appear) some of Samuels’s countless errors and distortions.  Let’s begin:


1.  Samuels contends that the Court’s partial-birth ruling last week in Gonzales v. Carhart “strains to draw distinctions” between the Nebraska law invalidated seven years ago in Stenberg v. Carhart and the federal law “in an obvious effort to play down the court’s flight from recent precedent and make the decision seem less political.”  But the reason the Court draws the distinctions is to show that the federal ban distinguishes between a common method of late-term abortion (“D&E”) and partial-birth abortion (also called “intact D&E”) in ways that the Nebraska law did not.  Since the Nebraska law’s supposed failure to draw that distinction was one of the two grounds on which the Court in Stenberg struck down the law, it was necessary for the Court to address this question.  The fact that Justice Ginsburg’s dissent does not take issue with the Court’s statutory distinctions calls into doubt Samuels’s naked assertion that the distinctions are “strain[ed]”.  And, as we shall see from the other defects in Samuels’s analysis, she has it entirely backwards in suggesting that the Court’s decision in Gonzales to defer to the federal law was “political” whereas the Stenberg majority’s decision to strike down the Nebraska statute was not. 


2.  Samuels contends that Justice Alito is “an avid opponent of women’s reproductive rights.”  If so, I guess that he will one day reveal his view that the Constitution prohibits permissive abortion laws—which would be, of course, well beyond the substantively neutral position (which Alito has never expressed as a jurist) that Roe v. Wade is wrong and that the Constitution leaves abortion policy to the democratic processes.  In the meantime, Alito’s judicial career is marked by faithful application of the law, including instances (see here for one example) in which he has concluded that the law favors the pro-abortion position on a legal question.  Hardly the mark of “an avid opponent” of abortion.


3.  Samuels contends that Justice Kennedy’s majority opinion “enshrine[d] into Supreme Court doctrine the rhetoric and tactical positioning of the anti-abortion movement” and “served up the patronizing fiction that the court was acting for women’s own good to protect their mental and moral health.”  Like many other critics, Samuels is confusing Kennedy’s discussion of the legitimate government objectives that the federal law serves with the notion that the Court was somehow pursuing those same objectives.  The Court wasn’t “enshrin[ing]” or “acting for” anything; it was merely recognizing the legitimacy of the law that bipartisan majorities in Congress adopted.


4.  If it’s possible for Samuels to get even more ludicrous, she does so when she contends that “it’s easy to detect the fingerprints of Justice Alito and … Chief Justice Roberts” on Kennedy’s opinion.  For better or worse, Kennedy’s opinion—especially the language that Samuels so dislikes—is vintage Kennedy.  I’m willing to bet that Alito and Roberts joined the opinion despite that language (which isn’t at all necessary to recognize the constitutionality of the law), and I’d be surprised if any serious students of the Court share Samuels’s view that they are somehow responsible for it.


5.  In order to paint Alito as a villain, Samuels further contends that Alito, as a Third Circuit judge, had taken an “outmoded attitude toward women’s autonomy” in his opinion supporting the constitutionality of a spousal-notification provision and that Justice O’Connor, in Planned Parenthood v. Casey, “went out of her way to castigate his patronizing stance.”  But there is absolutely nothing in Alito’s opinion to support her characterization of it.  And O’Connor’s opinion—or, more precisely, the joint opinion of O’Connor, Kennedy, and Souter (might Samuels be trying to obscure Kennedy’s role?)—did not mention Alito’s opinion in its discussion of the issue, much less go out of its way to castigate him.  (Charles Krauthammer slammed this same lie by Alito opponents in this November 2005 column.)  Samuels’s two paragraphs are an utter fabrication. 


More in Part 2.

Tags: Whelan


Subscribe to National Review