Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—April 6

1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court. His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history.

As one of Blackmun’s former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” Also from Lazarus: “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the [decades] since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)  

2016—In an Atlantic essay, lefty law professor Erwin Chemerinsky salivates over the prospect that President Obama’s hoped-for appointment of Merrick Garland to the Supreme Court would create a liberal majority that “likely would overrule” the Court’s landmark Second Amendment ruling in D.C. v. Heller and that would move the Court’s decisions dramatically leftward on a broad range of issues, including preventing any regulation of abortion, entrenching racial quotas, eliminating First Amendment protections against campaign-finance restrictions, abolishing the death penalty, and extravagantly overreading the Establishment Clause (farewell, school choice, and goodbye, In God We Trust).

And all of that is before Chemerinsky even begins briefly sketching his “dream” agenda.

Alas for Chemerinsky’s dreams, Senate Republicans will succeed in blocking action on Garland’s nomination, and Donald Trump will defeat Hillary Clinton in the presidential election seven months later.

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