Bench Memos

Law & the Courts

Why Senator Hawley’s Anti-Roe Test for Supreme Court Nominees Won’t Work

In an essay on Public Discourse today, I commend Senator Josh Hawley for his forceful condemnation of Roe v. Wade and for his determination to see Roe overruled, but I explain why his proposed test for Supreme Court nominees won’t work. A teaser excerpt:

For starters, Hawley’s test—Has a potential nominee explicitly acknowledged, on the record and before being nominated, that Roe was wrongly decided?—isn’t nearly as clear, nearly as easy to apply, as you might first think. Try to figure out which of these statements would pass his test.

1. “One of the most curious things about Roeis that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

2. “Roe wrongly fashioned a regime blanketing the subject of abortion, a set of rules that displaced virtually every state law then in force.”

3. “The courts have no business enforcing alleged rights on which there is no societal agreement, on matters ranging from the abortion cases, at one extreme, to school dress codes and things of that sort.”

4.“The Catholic Church’s teachings on the value of human life from conception to natural death provide a sure guide to the Christian life.”

In a sequel essay tomorrow, I will spell out how pro-life senators could exert real influence on Supreme Court nominations by a Republican president.


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