Bench Memos

NRO’s home for judicial news and analysis.

Judicial Chances, Political Failures


The indispensable Hadley Arkes, in an article titled “The Kennedy Court” in the January issue of First Things, begins with hopeful tea-leaf readings of last month’s oral arguments in the partial-birth abortion cases, and ends with wise and melancholy reflections on the failures of the political leaders who cannot or will not grasp the nettle so firmly gripped by Abraham Lincoln:

The closest parallel to Roe v. Wade is the decision in the Dred Scott case, and it seems curiously to have slipped from memory that President Lincoln did not seek to cope with that crisis in the regime by waiting for retirements from the Court. He forced the argument in public; he led a national movement to counter and overturn that decision; and he moved with Congress to roll back that decision in an act of ordinary legislation.

All true—with the additional sobering thought that in some respects Lincoln had the “cover” of a great war convulsing the nation when he signed that piece of ordinary legislation, directly contrary to Dred Scott, banning slavery in the territories in 1862. But let that go. Buy the magazine and read the whole thing.

Tags: Franck


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