By ED WHELAN
June 29, 2021 1:06 PM
On Public Discourse, law professor (and occasional Bench Memos contributor) Michael Stokes Paulsen has published the first part in a two-part series on Dobbs v. Jackson Women’s Health Organization. Dobbs, you will recall, is the big abortion case on the Supreme Court’s docket for next Term—the case that ought to bring a decisive end to the illegitimate Roe/Casey regime that the Court has inflicted on the American people for nearly fifty years now.
Some excerpts from Paulsen’s piece:
Dobbs poses the enormously important question whether Roe and Casey, two of the worst constitutional decisions of all time, were wrongly decided and should now, finally, be overruled. On the merits, I submit, the answer must be yes….
In simplest terms, Roe created a constitutional right to abortion of the life of a living human fetus. That result, and Roe’s reasoning in support of it, are indefensible from a legal standpoint. No plausible argument from the constitutional text, no rule or principle fairly derived from its structure or internal logic or deducible from other propositions contained therein, and no credible argument from historical understanding or intention remotely supports the abortion right created in Roe. Roe v. Wade is simply a lawless decision. I know of no serious constitutional scholar who defends Roe’s result as a faithful interpretation of the Constitution’s language, understood according to its natural and original meaning, as understood at the time of its adoption, or as consistent with the original intent of its adopters in 1868….
In Casey, the Court, while nominally reaffirming Roe’s substantive due process holding, could not bring itself actually to embrace Roe’s reasoning as correct. Indeed, a majority of justices seemed to indicate they believed that the case was wrongly decided. Casey left Roe in place almost purely on the basis of the doctrine of stare decisis. In other words, the justices concluded the Court should stick to Roe “whether or not mistaken,” simply because it was a precedent on which the Court had staked its authority, and it might look bad if it were to reverse itself. In tomorrow’s essay, I will attack this craven, unprincipled reasoning. For now, my point is simpler: Roe is a relic of abandoned reasoning that almost no one—including the Court itself—any longer thinks correct on its own terms. If Roe retains any legitimacy at all, it is only because it is a precedent and for no reason moored to the text of the Constitution….
It is worth pausing briefly to reflect on just how radical the Roe–Casey abortion-rights legal construct is. It is no cautious “balance” of interests. It is almost unreservedly pro-abortion. It adopts one of the most extremely lenient pro-abortion legal regimes anywhere in the world. It fails to recognize any legal rights of the unborn human fetal children, in any respect, at any stage of pregnancy. It does not recognize them as legal persons in their own right, entitled to the equal protection of the laws from private violence (a debatable but infinitely more plausible legal understanding of the common law and of the Constitution’s guarantees than is Roe’s creation of a constitutional right to abortion). Nor, short of that, does it recognize the unborn as members of the human species meriting protection by the state, whether or not they possess a constitutionally recognized legal “right to life” of their own. The living human fetus is treated, absurdly, as “potential life.”
Read the whole essay, and tomorrow’s installment on stare decisis as well.
By ED WHELAN
June 28, 2021 2:31 PM
Today’s unanimous Ninth Circuit panel ruling in Jones v. Ryan has plenty of ingredients that make me suspicious: (1) an opinion by Chief Judge Sidney Thomas, joined by two of his liberal colleagues; (2) granting habeas relief in a death penalty case on grounds of ineffective assistance of counsel; (3) overturning a denial of habeas relief by the district judge (Susan R. Bolton), a Clinton appointee; (4) finding that the prejudice prong of the habeas inquiry was met, based on counsel’s failure to obtain a defense mental-health expert for the penalty phase; (5) involving murders nearly three decades ago (in 1992); and (6) in a case in which the Supreme Court a decade ago vacated a previous ruling by Thomas granting habeas relief on grounds of ineffective assistance of counsel.
On the fourth point: The panel opines that if defense counsel had secured a mental-health expert, that expert “could have provided substantial evidence … that [Danny Lee] Jones suffered from mental illness,” including “(1) cognitive dysfunction …; (2) poly-substance abuse; (3) post-traumatic stress disorder; (4) attention deficit/hyperactivity disorder; (5) mood disorder; (6) bipolar depressive disorder; and (7) a learning disorder.” But, by the panel’s own account, the sentencing judge in fact found as mitigating factors that Jones “suffered from long-term substance abuse”; that he “was under the influence of drugs and alcohol at the time of the offense”; that he “had a chaotic and abusive childhood”; and that “his longstanding substance abuse problem may have been caused by genetic factors and aggravated by head trauma.”
Is there really a “reasonable probability” that the additional mental-health testing that the panel thinks trial counsel should have done in order to meet the threshold of competent representation would have changed the judge’s sentencing?
By ED WHELAN
June 29, 2021 8:00 AM
1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.
1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade.
The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation.
But it gets far worse. Consider, for example, these passages on stare decisis considerations:
“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”
“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”
“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”
“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”
“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment.’ The Federalist No. 78.”
2018—By a 5-2 vote, the Iowa supreme court rules (in Planned Parenthood v. Reynolds) that the state constitution requires that regulations of abortion be subject to strict judicial scrutiny and, applying such scrutiny, bars a state law that requires a 72-hour waiting period between the time a woman seeking abortion provides informed consent to the abortion and the time the abortion takes place.
2020—Presented an opportunity to begin making headway against the Supreme Court’s illegitimate Roe/Casey abortion regime, Chief Justice Roberts instead adopts a wooden view of stare decisis in June Medical Services v. Russo. While reiterating his belief that the Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt was “wrongly decided,” Roberts casts the decisive fifth vote against Louisiana’s admitting-privileges law for doctors.
From this and other recent votes by Roberts, the Left draws the lesson that bullying him pays big dividends.
M. Edward Whelan III
Distinguished Senior Fellow and
Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036
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