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Bench Memos

NRO’s home for judicial news and analysis.

On Life and Laws



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Many conservatives infer from Harriet Miers’s membership in a “pro -life”
church that she is okay on Roe. One reason they do so is that her supporters urgently invite them to do so. Given what these conservatives think about Roe, being “okay” on it means to reverse it. I will grant — even concede – that Harriet Miers is as pro-life personally as is her church. I think that is great. I hope that she does vote to reverse Roe.

But the inference my conservative friends draw is unwarranted. It just does not follow. (I think this is where a Texan telling this tale would
say, “That dog won’t hunt”.) There is a speed bump, and a big one,
between pro-life moral convictions and reversing Roe. There is a crucial middle term in any argument from pro-life moral views to reversing Roe. That term is called the law; constitutional law, to be exact. As Miers’s friend Justice Nathan Hecht says, just because Harriet is pro-life does not necessarily mean she will reverse Roe.

Of course not. Of course the constitutional law on a matter could be at odds with one’s convictions about what is morally right. It often is. I believe that capital punishment is immoral. But I do not doubt that it may, at least under some circumstances, be constitutionally imposed. Almost every pro-life person I know detours around their convictions when it comes to the Constitution. I am talking about all those conservatives who think that abortion is always wrong — tantamount to murder or manslaughter — but who say that if California, for example, wants to make abortion-on-demand the law of that state, there is nothing in the Constitution to stop it. This is definitely the view of Justice Scalia. He firmly believes that the Constitution is silent on abortion, that it interposes no objection to permissive abortion laws. Yet I am confident that Scalia believes that abortion is, morally speaking, like murder or manslaughter. Justice Scalia would reverse Roe. But he would be the first one to tell you that, in doing so, he is NOT enacting (or imposing or even relying upon) his own moral views. He will tell you that he honestly believes that the Constitution, properly construed, requires him to give judgment against Roe.

Judicial conservatives these days, up to and including John Roberts, never tire of insisting that their moral views are not sources of constitutional law. Remember his “umpire” analogy? Do you think that a good umpires call a ball in the dirt a strike anyway because, well, the pitcher is such a nice and Godly fellow?

Judicial conservatives do not just say that they separate law and morality. They loudly proclaim that being pro-life (as Harriet Miers surely seems to be) and believing that sometime in 2006 or later that the Supreme Court of the United States should reverse Roe v. Wade (and all the cases since which have affirmed Roe or presupposed its validity) are two entirely different matters.

The conservatives I mentioned at the top of this piece should stop reading tea leaves and paper scraps to discern Harriet Miers’s moral convictions: did she attend a pro-life dinner in 1989 or did she just give them a check? If she is close to Nathan Hecht and if he is pro-life than she must be, too. Enough already: Harriet Miers is pro-life. Done. Full stop. But that is not what conservatives need to know about her. What they need to know is the answer to the question about Roe. And it seems to me that, here, Harriet Miers’ supporters should not try to have it both ways: satisfy conservatives on the Roe question by pointing to her moral convictions at exactly the same time they declare her moral convictions to be irrelevant to the work of a justice.



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