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Bench Memos

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Whose Opportunity Is This Anyway?



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Just a follow up to my piece today. Much has been said that this is a huge opportunity for the Right, and for the president to extinguish a debt owed to them. It seems to me, however, that this isn’t an opportunity to gain all much ground by the Right. Yes, the conservative bloc might pick up a vote on Roe if the president plays his hand right, but judging by his recent embrace the reasoning of Casey (the passage that Justice Scalia called the “sweet mystery of life” dictum — establishing a right to define one’s place in the cosmos) in the homosexual sodomy case, Lawrence v. Texas, Justice Kennedy isn’t going anywhere on Roe. So there are still 5 solid votes for Roe on this Court. For the left-wing nuts to be screaming that “a woman’s right to choose” hangs in the balance is a baldface lie, and they know it. But they can raise more money with that sort of overheated rhetoric. In reality, the Left realizes that this is their opportunity, not the Right’s. Even if the president gets this decision right, at best, Anthony Kennedy (gulp) becomes the crucial swing vote on just about every major issue facing the Court: homosexual marriage, reasonable regulations on abortion, religion in American life, the role of foreign law in American law, etc. Making Justice Kennedy the fulcrum of this Court may send shivers down the spines of many a conservative. So before everyone gets excited about the opportunity, think long and hard about the consequences of a mistake here. In the last several terms, Justice O’Connor voted more with Chief Justice Rehnquist than with any other Justice. So it is a bit of a misstatement to say that her seat is so much more important to gaining ground for the conservatives than his. The president has to get this right just to preserve the middle ground that O’Connor at times pulled back from the liberals on the Court. If he gets it wrong, things could be lost for a long time.



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