Rich Lowry
Tuesday, June 28, 2022
The Left simply lost the intellectual
and political fight over the direction of the Supreme Court but can’t
bear to admit it.
Progressives tell themselves instead that
they’ve been undone by a series of dirty deeds, including the alleged deceit of
conservative justices who lied to the U.S. Senate about their commitment to
preserving Roe v. Wade.
Alexandria Ocasio-Cortez believes that
impeachment proceedings should be in play.
What the perjury case against the justices
in the Dobbs majority lacks is any evidence of assurances made
under oath or otherwise that they would vote to uphold a ruling of the Court
that had, justly, been under withering assault since it was handed down 50
years ago.
This shouldn’t have been hard to figure
out. Any judge who considers himself or herself an originalist was going to
believe that Roe was bad law because there wasn’t remotely
colorable warrant for it under the Constitution. There might have been varying
views on what deference was owed to precedent, or other tactical questions;
there wasn’t any meaningful disagreement on the core matter.
The dance that went on is that Democrats
would try to get conservative nominees to say that Roe had
been a precedent for a long time. The nominees would agree, while not going any
further. They’d often cite — correctly — the refusal to comment on contested
questions going back to Ruth Bader Ginsburg’s confirmation hearings.
Typical was an exchange between Senator
Amy Klobuchar of Minnesota and Amy Coney Barrett during the latter’s hearings.
Klobuchar pressed Barrett on whether Roe was a “super
precedent,” or a ruling that no one thinks is in play anymore. Barrett
demurred, “I’m answering a lot of questions about Roe, which I think
indicates that Roe doesn’t fall in that category.”
This wasn’t deception — it was clearly
saying, if obliquely, that Roe was vulnerable to challenge.
I’d prefer if nominees were less lawyerly, but they are experts in subtle
distinctions, and the long-standing politicization of the confirmation process
puts a premium on indirection.
Justice Brett Kavanaugh has been a
particular target for post-Dobbs attack. Pro-choice Republican
senator Susan Collins told the New York Times that she feels
he misled her in a private meeting.
The Times story doesn’t
say that Collins asked Kavanaugh directly if he’d overturn Roe —
presumably for good reason. The senator would have known such a question would
have been highly improper. In fact, she praised Neil Gorsuch during his 2017
confirmation for saying he would have left the room if someone asked him for a
commitment to overturn Roe.
It is doubtful that Kavanaugh told Collins
anything in private that he didn’t say in his sworn public testimony as well.
If he was playing some sort of double game, Collins should have felt an
obligation to call Kavanaugh out on it. She didn’t. In fact, she gladly voted
for him.
It is true that in his hearings Kavanaugh
leaned heavily on the notion that Roe was precedent and that
it had been reaffirmed in Casey, what he called “a precedent on
precedent.” Yet, other supporters of Roe weren’t inclined to
overinterpret this. As Senator Sheldon Whitehouse of Rhode Island told
Kavanaugh at the outset of the hearings, “Your own words make clear you do not
really believe Roe v. Wade is settled law since the Court, as
you said, ‘can always overrule its precedent.’”
In her dramatic floor statement supporting
Kavanaugh’s nomination, Collins made it clear that she also understood that his
commitment to precedent was not absolute. It would give way, she explained, “in
those rare circumstances where a decision is ‘grievously wrong’ or ‘deeply
inconsistent with the law.’”
The Court held in Dobbs that Roe was,
indeed, egregiously wrong. Collins might be disappointed, but she shouldn’t
feel ill-used.
Roe never deserved to be written into law in the first place. The
conservative justices never said they would preserve it, and they’ve done their
duty to the Constitution by finally abandoning it.
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