Bench Memos

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Washington Post Op-Ed on Partial-Birth Abortion Cases


Today’s house editorial in the Washington Post reads like a New York Times editorial.  And, no, that’s not a compliment.


The editorial asserts that it is “laughable” that the federal partial-birth abortion ban might be distinguished from the state statute struck down in Stenberg v. Carhart.  But, as anyone who attended the oral arguments can attest, the Court took seriously the Department of Justice’s arguments to this end.  And nothing in the editorial’s conclusory assertions suggests that it was wrong to do so.


The editorial maintains that the “real question” in the case is whether the Court “will continue to honor its precedent.”  That slippery proposition evades the fact that the Court has never treated precedent as sacrosanct and in fact does not have coherent precedents on what weight to give precedents under what circumstances.  The editorial suggests that it’s enough that Stenberg was “high-profile”, but I rather doubt that the Post made similar arguments in favor of the precedential force of, say, Bowers v. Hardwick.


Completely apart from its subject matter, Stenberg has no claim to serious precedential force, for several reasons.  First, precedent that overrides the democratic processes demands more careful re-examination than precedent that defers to those processes.  Second, Stenberg, a 5-4 decision that is a mere six years old, certainly has no claim to be embedded in American traditions.  Third, it is highly doubtful that Stenberg itself was faithful to precedent.  Fourth, the precedent that Stenberg purported to apply is among the most unsettled and controversial in the history of the Supreme Court.


In this light, the editorial’s insinuation that Chief Justice Roberts and Justice Alito would betray the highly generalized statements they made at their confirmation hearings about stare decisis if they distinguish or overrule Stenberg is, shall we say, laughable.   

Tags: Whelan


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