April 26, 2007

Prof. Fried Smells A Rat [10:34 am]

Of course, he’s not alone in being snookered these days, but at least he gets a platform to point it out (however more gentlemanly than I could): Supreme Confusion

Senator Dianne Feinstein of California asked whether I thought a Justice Roberts would vote to overrule Roe v. Wade. I said I thought he would not, at least not in its later, less absolute version embodied in the 1992 Casey decision, which protected against governments imposing an “undue burden” on a woman’s right to choose abortion before the fetus’s viability. I told Senator Feinstein that the formulation, and the principles behind it, had become so deeply rooted — in the law relied on not only in abortion cases but by analogy in matters as widely disparate as the Texas homosexual sodomy case, compelled visiting rights for grandparents and the right to die — that its abandonment would produce the kind of violent unsettling of the law against which respect for precedent is meant to protect.

The next year, when I testified in support of Samuel Alito, Senator Feinstein asked me the same question. I gave the same answer.

[...] Finally, the decision is disturbing for a more far-reaching reason: there are indeed cases where the court in the last few years had become truly incoherent, largely as a result of Justice O’Connor’s pragmatic and underexplained abandonment of positions she had earlier agreed to or even proclaimed on affirmative action and campaign finance. The first issue has been argued and will be decided this term of court; campaign finance is being argued this week.

If the justices eliminate the confusion and restore principle in those areas, the cry will go up that the court is simply reflecting its changed political complexion, not reasoning carefully and promoting stability and clarity in the law. And last week’s decision will lend plausibility to that charge.

[I purposely left out the paragraph immediately following the first two in the quote; because I am sure that no one needs to help to immortalize someone playing CYA on the Op-Ed pages of the NYTimes.]

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