Bench Memos

NRO’s home for judicial news and analysis.

Still More on: “Painfully Awkward”? No, Just Plain Stupid


From Geoff Stone’s opening paragraph:

Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.  In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted  those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.  

This is a laughably incompetent account of the case:  Apart from the fact that Gonzales did not “reverse[]” Stenberg, the statement of the majority’s use of the findings is flatly wrong.  A prospective law student who summarized the case this way should be encouraged to pursue another profession.  The fact that a highly respected professor at one of the best law schools in the country could produce this account is stunning.

Tags: Whelan


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