By Charles C. W. Cooke
Wednesday, September 23, 2020
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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