Ed Whelan <> Unsubscribe12:06 PM (1 hour ago)to meThe Wall Street Journal has just posted online my op-ed titled “John Roberts and the Abortion Precedents” that will appear in its print issue tomorrow, the day of the oral argument in Dobbs v. Jackson Women’s Health Organization. The other items below are from National Review Online’s Bench Memos. John Roberts and the Abortion PrecedentsThe chief justice has a chance to protect the Supreme Court, strike a blow for democracy, and overturn bad decisions.By Edward WhelanWall Street JournalNov. 30, 2021 12:26 pm ET The Supreme Court hears its most important abortion case in a generation on Wednesday. Dobbs v. Jackson Women’s Health Organization concerns a Mississippi law that bans most abortions after 15 weeks of gestation. That’s more permissive than the laws of nearly every country in Europe. But because it applies before viability, it conflicts with Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Roe and Casey have corrupted America’s law and disrupted its politics for decades. Dobbs provides the court an opportunity to end the damage by restoring abortion policy to the democratic processes in the states. Many observers expect Chief Justice John Roberts —wary of overturning precedent and anxious to defend the court from political attacks—to search for a compromise. But his record provides compelling reasons to think he will forge a supermajority of justices to overturn Roe and Casey definitively. In Roe, the justices imposed a uniform national policy on a contentious social issue. In Obergefell v. Hodges (2015), the court did the same thing, with the chief justice in dissent. “Just who do we think we are?” he asked plaintively. “The majority’s decision is an act of will, not legal judgment. The right it announces”—to same-sex marriage—“has no basis in the Constitution or this Court’s precedent.” The majority “seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.” The same was true of abortion in 1973. What about stare decisis, the doctrine of adhering to precedent? Casey’s three-justice plurality let the “central holding” of Roe stand while reconstructing its legal basis. Stare decisis doesn’t allow the court to retain a precedent by “radically reconceptualizing” its reasoning and “jury-rigging new and different justifications to shore up the original mistake,” Chief Justice Roberts argued in Citizens United v. FEC (2010). That concurring opinion, joined by Justice Samuel Alito, could have been written with Roe and Casey in mind. Far from being an “inexorable command, . . . especially in constitutional cases,” the chief justice wrote, stare decisis is a “principle of policy” that calls for the court to “balance the importance of having constitutional questions decided against the importance of having them decided right.” When a “precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases,” the justices “must be more willing to depart from that precedent.” Because the chief justice is a proponent of judicial restraint—that is, of deference to the political branches—Dobbs provides a much easier case for overruling precedent than Citizens United did. The court’s ruling in Citizens United limited the scope of permissible legislation, whereas its overruling of Roe and Casey would end the court’s usurpation of the democratic processes on abortion. Some observers have suggested that the chief justice might try to fashion a compromise, whereby the court would hold that Mississippi’s 15-week limit doesn’t violate Casey’s “undue burden” standards. That might appear to dodge the question whether to reaffirm Roe and Casey or overturn them. But Roe and Casey don’t allow a middle ground in Dobbs. Under those precedents, a prohibition on abortion before the unborn child is “viable” outside the womb is per se an “undue burden.” There are disputes whether current technology puts viability at 24 weeks or as early as 20 weeks, but everyone acknowledges that Mississippi’s 15-week line is pre-viability. Thus, a purported reconception of Casey that erased the viability line would overrule and supplant Roe and Casey. At the same time, it would keep the court in the business of regulating abortion by inviting a series of follow-up cases involving bans at, say, 12 weeks of gestation, eight weeks, detection of heartbeat (around six weeks) and conception. More important, there is no sound basis for imposing this substitute for Casey. As the chief justice declared in Citizens United, the Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” If the court follows that principle, it will face up to the necessity of choosing between two options. It could reaffirm its grave mistakes in Roe and Casey and strike down the Mississippi law. Or it could hold that there is no constitutional right to abortion and that abortion restrictions, like most other limitations on private conduct, are subject only to very deferential review by federal judges to determine whether they have a “rational basis”—a standard that Mississippi’s law easily satisfies. Chief Justice Roberts’s proper concerns with the court’s institutional legitimacy should also drive him to overturn Roe and Casey. In Parents Involved v. Seattle, he observed: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Similarly, the way to stop Roe and Casey from doing further damage to the court is to overturn Roe and Casey. To be sure, such a ruling would arouse intense controversy, especially among the media, entertainment and academic elites who are invested in the abortion license. But as in 1992, the failure to overturn Roe would also arouse intense controversy—and more deservedly so, as it would betray the faith that many citizens have placed in working peacefully over decades through the political process to change hearts and minds and laws—and to build a Supreme Court that respects the limits of its authority. The immediate aftermath of the overruling of Roe might well be messy and contentious. But unless concerns over the court’s legitimacy are mere camouflage for the court’s self-aggrandizement, a sound institutionalism must also respect the legitimacy of the state legislatures that our Constitution leaves with primary authority over abortion policy. Bereft of meritorious legal arguments, some supporters of Roe have tried to intimidate the justices by threatening to pack the court. Yielding to that threat would politicize the court beyond measure and invite endless bullying. And court-packing is deeply unpopular. The flagrant wrongness of Roe and Casey and the deep discomfort that many Democratic voters have with their party’s radical agenda on abortion make the overturning of Roe an improbable occasion for a blatant attack on the court to succeed. By winning this battle, Chief Justice Roberts would secure his legacy as a champion of the court’s independence from politics.Mr. Whelan is a distinguished senior fellow at the Ethics and Public Policy Center and a co-editor of “The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.” Reagan AG Ed Meese: Success of Conservative Legal Movement Turns on Overruling Roe/Casey in DobbsBy ED WHELANNovember 29, 2021 12:30 PMAs President Reagan’s White House counsel and as Attorney General, Ed Meese was a leading architect of the modern conservative legal movement. In this Washington Post op-ed, Meese soundly observes that the question whether that movement can be judged to be a “success” will turn on whether the Supreme Court in Dobbs v. Jackson Women’s Health Organization (to be argued on Wednesday) overrules Roe v. Wade and Planned Parenthood v. Casey and “return[s] the issue of abortion where it belongs, to the people” in our fifty states.An excerpt:Roe has stood for years as the prime example of disrespect to our Constitution’s allocation of power and the proper judicial role. It has been the focus of criticism from judges and legal scholars including Robert H. Bork, Alexander Bickel, William H. Rehnquist and Antonin Scalia. And for good reason. To them and the legal movement they inspired, Roe’s judicial supremacy misconceived the Constitution, ignored the lessons of history and encouraged unaccountable government. And the 1992 case that preserved Roe’s “essential holding,” Planned Parenthood of Southeastern Pennsylvania v. Casey, showed that Roe and subsequent abortion case law are not governed by the ordinary principles of stare decisis, the notion that the court should not abandon its precedents without strong reason. Subsequent abortion case law has only compounded this judicial willfulness. There is a separate “law of abortion,” as Roe’s author, Justice Harry A. Blackmun, put it, that distorts or ignores ordinary legal rules so to preserve constitutionalized abortion. With that, many other areas of law — from free speech, religious liberty, voting laws, to mundane matters of civil procedure — have been turned into proxy wars over abortion, because Roe and Casey prevent the court from honestly confronting their lacking basis in the Constitution. In short, constitutionalized abortion epitomizes judicial supremacy because it rests on nothing else. This Day in Liberal Judicial Activism—November 30By ED WHELANNovember 30, 2021 8:00 AM1979—President Carter nominates This Day Hall of Famer Stephen Reinhardt to a seat on the Ninth Circuit.1987—In the aftermath of the Senate’s defeat of the Supreme Court nomination of Judge Robert H. Bork and of Judge Douglas H. Ginsburg’s decision not to proceed with his intended nomination, President Reagan nominates Ninth Circuit judge Anthony M. Kennedy to fill the seat vacated by retired Justice Lewis F. Powell Jr.1989—By a vote of 4 to 3, the Florida supreme court concocts a categorical rule that police violate the Fourth Amendment when they conduct drug searches by boarding intercity buses and questioning passengers. In her melodramatic majority opinion (in Bostick v. State), Justice Rosemary Barkett posits that the “intrusion upon privacy rights caused by the [practice] is too great for democracy to sustain,” and she equates the police conduct with methods employed by Nazi Germany.On review, the Supreme Court (in Florida v. Bostick) rejects Barkett’s rule by a 6 to 3 vote (with Marshall, Stevens, and Blackmun in dissent). Justice O’Connor’s majority opinion determines that the same totality-of-the-circumstances inquiry that governs whether “encounters that take place on a city street or an airport lobby” constitute a seizure “applies equally to encounters on a bus.”On remand, Barkett again concludes that an unlawful seizure occurred. This time, though, she is in dissent.  This Day in Liberal Judicial Activism—November 29By ED WHELANNovember 29, 2021 8:00 AM2004—Objecting to governing law on homosexuals in the military, many law schools restricted the access of military recruiters to their students. In response, Congress enacted the Solomon Amendment, which provides that in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.In FAIR v. Rumsfeld, a divided panel of the Third Circuit rules that the Solomon Amendment violates First Amendment speech guarantees by “requir[ing] law schools to express a message that is incompatible with their educational objectives.” According to the majority opinion of Judge Thomas Ambro, the message that law schools are supposedly being required to express is that discrimination on the basis of sexual orientation is permissible, and the means by which law schools are supposedly being required to express that message is by giving military recruiters the same access to students they give other recruiters.On review, the Supreme Court will unanimously reverse, in an opinion by Chief Justice Roberts. Roberts makes short work of the Third Circuit’s reasoning. The Solomon Amendment, he explains, “neither limits what law schools may say nor requires them to say anything.” Rather, it “regulates conduct, not speech,” as it “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Because Congress could directly require that law schools provide access to military recruiters, it can impose the same requirement as a condition of government funding.  2016—Having earlier found North Carolina’s legislative districts to be the product of an unconstitutional racial gerrymander, a three-judge panel in the Middle District of North Carolina (in Covington v. North Carolina) orders the state to hold a special election in the fall of 2017, smack in the middle of the two-year term of the legislators elected in November 2016. In addition to cutting the legislators’ terms in half, the court order would also suspend the candidate-residency requirements in the state constitution for legislative candidates in the special election. Six weeks later, the Supreme Court will block the panel’s order, and in June 2017, in a summary per curiam ruling, the Court will vacate the order. The Court chastises the panel for “address[ing] the balance of equities in only the most cursory fashion,” and it says that it lacks “confidence that the court adequately grappled with the interests on both sides of the remedial question before us.”  This Day in Liberal Judicial Activism—November 28By ED WHELANNovember 28, 2021 8:00 AM1975—President Gerald Ford nominates Seventh Circuit judge John Paul Stevens to fill the Supreme Court seat vacated by retired Justice William O. Douglas.  Not long before his death at the end of 2006, Ford will rashly state that he is “prepared to allow history’s judgment” of his presidency to rest exclusively on his appointment of Stevens—and that he specifically agrees with Stevens’s extreme positions on the Establishment Clause. But Ford’s actions belie his words, for (as this essay of mine explains) his own funeral ceremony at National Cathedral that he so carefully planned could never have taken place as it did—and probably could not have occurred at all—if Stevens’s radical secularist misreading of the Establishment Clause were governing law. 2016—In what Fourth Amendment expert Orin Kerr will critique as yet another “very unpersuasive” opinion, magistrate judge James Orenstein rejects the government’s application for a search warrant on the spurious ground that the target of the search had consented to the search. Orenstein, Kerr observes, is “a leader in the Magistrate’s Revolt, a small group of federal magistrate judges who have often come up with unexpected theories to reject court-order applications in computer search and surveillance cases.”  This Day in Liberal Judicial Activism—November 26By ED WHELANNovember 26, 2021 8:00 AM2019—In Doe v. Trump, federal district judge Michael H. Simon (District of Oregon) issues a nationwide preliminary injunction prohibiting the Trump administration from implementing a presidential proclamation that restricts entry of immigrant visa applicants on the ground that they would burden the American health care system. A divided Ninth Circuit panel will reverse Simon’s ruling a year later. This Day in Liberal Judicial Activism—November 25By ED WHELANNovember 25, 2021 8:00 AM2021—Happy Thanksgiving! Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast. In the words of Washington: Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness”: Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us. And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best. 2013—In a wild administrative ruling (In re Fonberg), the three-judge Judicial Council of the Ninth Circuit Executive Committee concludes that an unmarried court employee with a same-sex domestic partner is entitled to federal marital benefits. This, alas, is not the first time that Ninth Circuit chief judge Alex Kozinski has exercised his non-judicial administrative authority to carry out a sneak attack on marriage.This Day in Liberal Judicial Activism—November 24By ED WHELANNovember 24, 2021 8:00 AM 2004—A New Hampshire law, enacted in 2003, generally requires that abortionists provide 48 hours’ advance notice to parents of minor daughters who have arranged to undergo abortion. The law provides for various exceptions to the notice requirement but does not set forth an express exception for hypothetical instances in which compliance with the notice period would threaten severe damage to the minor’s health. In Planned Parenthood v. Heed, a First Circuit panel invalidates the law in its entirety because it lacks a health exception. 
On review, the Supreme Court will rule unanimously (in Ayotte v. Planned Parenthood) that the First Circuit erred in failing to consider whether narrower relief, such as enjoining enforcement of the law only in instances that presented a severe health risk, was appropriate. This Day in Liberal Judicial Activism—November 23By ED WHELANNovember 23, 2021 8:00 AM1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights of the people,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.” To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy: as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”  Never mind that the supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.” (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).  A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.” He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”   M. Edward Whelan III
Distinguished Senior Fellow andAntonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
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About abyssum

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