The Corner

Law & the Courts

Frank Bruni Can’t Have It Both Ways on the Court

The U.S. Supreme Court in Washington, D.C., January 20, 2018 (Joshua Roberts/Reuters)

In the New York Times, Frank Bruni complains about the system of government that has put the Republican Party in a position to nominate three Supreme Court justices in four years. I have rebutted most of the arguments he makes in previous posts, so I will not dwell on those today. But this line, thrown in as the icing on the cake, is worth addressing:

[A] court with three Trump appointees could well restrict abortion even though most Americans support its legality in all or most cases.

This way of arguing is common to progressive complaints about the Court. Bruni does not address — or even note — what the Constitution actually says on these issues, and he makes no mention whatsoever of the legal disputes that are at their root. Rather, after insisting that he’s not suggesting that the Court should be beholden to public opinion, he suggests that the Court should be beholden to public opinion. In and of itself, that is annoying enough; the Supreme Court is a court, not a legislature. But it is especially irritating given that what Bruni says in support of this position isn’t true and doesn’t comport with his broader argument.

“All or most cases” is an extremely misleading way of characterizing polling on abortion, which shows that around 65 percent of Americans support legal abortion in the first trimester, but that, after that point, support drops off a cliff, to around 25 percent in the second trimester, and to about 13 percent in the third trimester. As Democrats themselves have noted, “In 389 out of 435 Congressional districts, a majority of voters support a ban on abortion after 20 weeks.” Why does this matter? Well, because, if it were true that “most Americans support its legality in all or most cases,” then Roe v. Wade would not be necessary to protect abortion “in all or most cases.” Bruni writes that the Court “could well restrict abortion.” But this is not, in fact, what the Court would, or could, do. If, as Bruni fears, the Court were to revisit and overturn Roe, it would simply be committing to refuse to comment either way on state-level abortion restrictions — restrictions that had, by definition, passed a legislature and been signed by a governor. Under this arrangement, if a state permitted abortion, abortion would be permitted; if it banned or restricted abortion, abortion would be restricted or banned; and in both cases, the Court would remain silent.

Despite the Times‘s endless insinuations to the contrary, the Supreme Court is not a Council of Exalted Opinion that is asked, “So, abortion: Yeah, or nah?” It is a judicial body that is asked from time to time to determine whether laws passed at all levels are consistent with the plain text of the Constitution. If the Constitution prohibits those laws, they are struck down — irrespective of how popular they are. If the Constitution does not prohibit those laws, or if the Constitution does not intersect with them at all, then they stand. If Bruni is worried that a future Court will decline to strike down duly enacted abortion laws, then he is in fact worried that the solid support for abortion that he insists exists isn’t real. Which, of course, it is not.

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