Our crisis of law surrounding the prevalence of abortion-on-demand in our society is founded on a confusion of the business of law with the business of politics.

Dobbs and the Court’s ‘Legitimacy’

By ED WHELAN

November 16, 2021 1:15 PM

The new issue of National Review is dedicated to the theme “End Roe” and features an excellent collection of sixteen articles that comprehensively “examine the legal arguments, the policy arguments, and the social arguments for finally ending the Roe era in America.” Even better, they all appear to be out from behind the paywall.

I’ll highlight a few of the articles in this and follow-on posts.

In the first article in the series, Matt Franck and Robby George explore the concept of the Court’s “legitimacy.” They explain that the plurality opinion in Planned Parenthood v. Casey (1992), in addressing the topic, offered “at once at once a grandiose vision of the Court’s role in our constitutional order and a kind of cringing neediness for ‘the people’s acceptance.’” Casey has been a manifest failure: “by clinging steadfastly to Roe—a ruling Casey exposed as lacking any roots in the text, logic, structure, or original understanding of the Constitution—the Court only exacerbated the country’s divisions and guaranteed continuing controversy.”

By contrast, Chief Justice Rehnquist set forth in his dissent in Casey the simple proposition that the “Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution.”

As Franck and George sum it up:

To argue that indefensible precedents must be preserved only because they excite half the country to demand their preservation and the other half to demand their abandonment; to say that the Court risks some “political capital” in doing what a majority of the justices know is the right thing — the constitutionally correct thing; to quake at the thought of the political conflicts that will be loosed on the world by a sound interpretation of the Constitution, when a half century of experience shows that those conflicts were generated in the first place by a ruling that traduced the Constitution — all such arguments are founded on a confusion of the business of law with the business of politics.

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I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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