Bench Memos

Joe Biden’s Sophisticated Mind

Senator Biden wasn’t present for the final vote on the 2003 federal partial-birth ban, but he has supported the ban and yesterday made clear that he still does.  But he also released a statement (which I can’t find but which is quoted here) that criticized the Supreme Court’s decision upholding the law:  the ruling, he said, “contains troubling reasoning that could lay a powerful foundation to dismantle basic legal precedent.”  I can’t quite make heads or tails of his assertion, but fortunately we have the benefit of Biden’s fuller account yesterday on “Meet the Press”:


I’ll tell you why I criticized the Supreme Court.  They upheld the ban, and then they engaged in what we lawyers call dicta that is frightening.  You had an intellectually dishonest rationale for an honest justification for upholding the ban, and that was this:  They went further, and then they, in the language associated with the decision said, by the way, they blurred whether there is the first trimester and third trimester in how much—I know this is going to sound arcane to the listeners—but whether or not they blurred the distinction between the government’s role in being involved in the first day and the ninth month.  They blurred the role in terms of whether or not there is—they became paternalistic, talking about the court could consider the impact on the mother and keeping her from making a mistake. This is all code for saying, “Here we come to undo Roe v. Wade.” And it went on to say, by the way, that the life of the mother was, in fact, permissible exception, and it went on to say that even—that any woman could challenge, even if her health is at risk, could come back to the court to challenge that. So the bottom line here is, what they did is not so much the decision, the actual outcome of the decision, it’s what attended the decision that portends for a real hard move on the court to undo the right of privacy.  That’s what I’m criticizing about the court’s decision.


That sure clears everything up, doesn’t it, for those of us who don’t have Biden’s subtle appreciation of the “arcane”?  Surely it couldn’t be that Biden’s incoherent, baseless critique and his even more ludicrous explanation of his general thinking on abortion—e.g., Roe is “the closest thing politically to what has been the philosophic divisions existent among the major confessional faiths in our country”—are driven by his ambitious delusion that he has more chance than I do of winning the Democratic nomination for president.

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