Bench Memos

Law & the Courts

More Milbankery

Reading a column by the Washington Post’s Dana Milbank often induces a sense of marvel that anyone could be such a brazen demagogue. So it is with his column today about the rival abortion protests outside the Supreme Court yesterday.

A person of ordinary good judgment might conclude that the abortion protests outside the Court were about the abortion case being argued inside the Court.

In the absence of reason to think otherwise, such a person would sensibly assume that those same protests would have occurred, in indistinguishable fashion, irrespective of Justice Scalia’s recent death, just as similar protests have surrounded every Supreme Court argument on abortion in recent decades.

That person might further recognize that those protests illustrate the folly and the failure of the call by five justices in Planned Parenthood v. Casey twenty-four years ago for “the contending sides of a national controversy to end their national division”—and that those protests thus vindicate the wisdom of Justice Scalia’s observation that it is the Court’s illegitimate power grab in Roe v. Wade (perpetuated in Casey) that, “to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.”

That person of ordinary good judgment is, of course, not Dana Milbank.

As he had already shown, one of Milbank’s self-assigned propaganda missions is to try to generate political pressure against Senate Republicans for committing to take no action on a Supreme Court nomination this year. Thus it is that Milbank’s strange takeaway from yesterday’s protests is that they are somehow “a vivid reminder that Senate Republicans have birthed a whole new round of trouble for the Supreme Court.” Never mind that you can’t find any facts in the article to support that assertion: Milbank’s headline blares the same hoped-for nonsense.  

To be sure, Milbank speculates that his observation that some 80% of the protesters were “abortion rights supporters” indicates that “Republicans appeared to have fired up the other side more than their own.” But what possible basis does he have for thinking that the turnout would have been any different if Scalia were still on the Court? (Then as now, the challengers to the Texas law know that they need to get Justice Kennedy’s vote to win.) And did Milbank notice that none of the many protest signs he quotes says a word about the vacancy battle?

Professing concern for the Supreme Court’s “dignity,” Milbank purports to lament the prospect that “the court is about to become more politicized than ever.” But it’s the Court’s rulings imposing the Left’s policy preferences on so many hot-button issues—rather than, per Scalia, leaving them to the legislative processes—that have done so much to politicize the Court. And a firm liberal majority on the Court would become even more aggressive in doing so—on issues ranging from gun rights to so-called “hate speech” (speech the Left doesn’t like) to property rights to partial-birth abortion to the death penalty. What Milbank really laments is that Senate Republicans are working to give American citizens an opportunity to prevent that deeper politicization of the Court.​


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