Bench Memos

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Worse Than Greenhouse


This typically insipid New York Times editorial from two days ago on the Supreme Court’s new Term has been called to my attention.  I will limit myself to a couple general observations:


1.  The editorial repeatedly uses political labels like “solidly conservative,” “fairly centrist,” and “moderation” that obscure the central question concerning the Supreme Court in a constitutional republic:  Does the Court, in a particular case, have a legitimate basis for overriding a democratically enacted law? 


2.  The editorial says that this Term will give the justices in the “now solidly conservative majority” (which majority is that???) “a chance to prove what sort of conservatives they intend to be:  those who issue rulings to match their personal ideology, or those who want to keep the court on a steady path by respecting precedent.”  This is, of course, a false framing of the two alternatives. 


To defer to a “conservative” (or liberal) law that does not genuinely violate the Constitution is not to act conservatively (or liberally); it is, rather, to exercise the judicial role properly.  A justice need not be “hostile to abortion rights” to recognize that the federal partial-birth abortion ban is constitutional.  He need only not indulge any pro-abortion sympathies that he may have.  As I have explained more fully in this essay, the Scalia position on the constitutional status of abortion regulation is the genuinely moderate (as well as correct) one.


And when the “steady path” that the Court has been on has repeatedly trampled the basic right of American citizens to exercise the power of self-governance through their legislators, the Court’s highest duty is to change paths.  A proper respect for precedent would not prevent that. 


The editorial’s charge that Chief Justice Roberts and Justice Alito would not be “true to the statements they made at their confirmation hearings about respecting precedent” if they vote to uphold the federal partial-birth abortion ban is ridiculous.  In this regard, the Chief Justice’s majority opinion last Term in Sanchez-Llamas v. Oregon is instructive and encouraging.  In that case, the Chief Justice gave “respectful consideration” (sound familiar?) to two rulings by the International Court of Justice holding that the Vienna Convention precluded the application of procedural default rules to violations of Article 36 of the Convention (concerning communications between a detained alien and his consular officers).  According such “respectful consideration,” the Chief Justice rejected the ICJ’s interpretation. Likewise, the Chief Justice and Justice Alito can both respect and, in the end, reject wrong precedent.

See also Curt Levey’s thoughts on this editorial on ConfirmThem.

Tags: Whelan


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