Patterico's Pontifications

6/11/2008

CJR: Here’s What’s at Stake for the Supreme Court . . . If You Completely Ignore History

Filed under: Abortion,General,Judiciary,Media Bias — Patterico @ 12:10 am



Zachary Roth at the Columbia Journalism Review has this odd and quite untrue passage:

In recent presidential elections, anyone paying a basic amount of attention to the race has gone to the polls understanding one clear and compelling difference between the candidates: that the Democrat would pick judges who would vote to uphold Roe v. Wade, ensuring that abortion remains legal, and that the Republican would, in all likelihood, pick judges who would vote to overturn it, opening the door to state-level abortion bans. As a result, we’ve all been admirably well informed about the impact of our vote on this key issue.

This must be some new meaning of the phrase “in all likelihood” that I am unfamiliar with.

Let’s look at the judicial appointments since Nixon, and how they have voted or opined on Roe and/or Casey (which affirmed the central holding of Roe):

NIXON
Burger: Joined Roe majority
Blackmun: Wrote Roe
Powell: Joined Roe majority
Rehnquist: Dissented in Roe

FORD
Stevens: Joined Casey majority

REAGAN
O’Connor: Joined Casey majority
Scalia: Dissented in Casey
Kennedy: Joined Casey majority

BUSH I
Souter: Joined Casey majority
Thomas: Dissented in Casey

BUSH II
Roberts: Refused to join Thomas opinion saying Roe is bad law
Alito: Refused to join Thomas opinion saying Roe is bad law

That’s 12 justices. Fully seven voted in the majority in Roe or Casey. That’s a majority.

Only three voted against Roe or Casey.

The views of two are unknown, but they pointedly refused to join an opinion saying Roe is bad law.

Since when does 3 out of 12 constitute a great success rate?

So: what’s this “in all likelihood” nonsense?

If Roth had said that Republicans “try” to appoint Justices who would overturn Roe, that would be fine. But let’s be clear: “in all likelihood,” they are going to try . . . and fail.

8 Responses to “CJR: Here’s What’s at Stake for the Supreme Court . . . If You Completely Ignore History”

  1. Patterico:

    Let me stick up for Roberts and Alito here for a moment: They might have refused to join the opinion declaring Roe to be bad law for reasons other than believing it was good (or at least settled) law.

    It’s possible that they believed the opinion — which they might conceivably have agreed with in the abstract — went beyond the facts of the case in a way they considered inappropriately activist.

    I think we’ll have to wait until a case actually comes before them, the facts of which demand a position on Roe. Another “Casey,” for instance.

    Until then, I’m skeptical we can really deduce their positions solely from the negative.

    Dafydd

    Dafydd ab Hugh (db2ea4)

  2. There sure are a lot of people who are defending a law in which 1) the primary focus of the law ‘fetus’ cannot be defined, and 2) was never legislated.

    The deception behind Roe vs Wade is one of the the main reasons why I deplore feminists today, as a young women I fell for the feminist’s lies and manipulation and now regret falling for the wicked witches.

    Honestly, I cannot stand my gender’s weak sisterhood.

    syn (1017f1)

  3. As long as Roe and Griswold remain valid, I can’t help but wonder what other rights emanate from the penumbra of the First Amendment, and whether any other amendments have any penumbrae under which other, as-yet-undiscovered rights, exist.

    Diffus (cb9f4f)

  4. The Thunder Run has linked to this post in the – Web Reconnaissance for 06/11/2008 A short recon of what’s out there that might draw your attention, updated throughout the day…so check back often.

    David M (447675)

  5. I think Mr Roth is trying to say that Republican appointees may not have a religious devotion to Roe. No Democrat could consider any justice who did not consider Roe as coming down from Mt Sinai.

    Ken Hahn (7742d5)

  6. Only three voted against Roe or Casey.
    ….
    So: what’s this “in all likelihood” nonsense?

    Elementary! Three Republican-appointed justices voted that Roe is bad law. “All” has three letters in it. Therefore three justices constitutes “All” likelihood.

    Democrat math!

    (I’d like to think I’m kidding.)

    Karl Lembke (ff486c)

  7. What you say is right: Democrats alway appoint Supreme Court judges who will uphold Roe (and Casey etc.), while Republicans … usually appoint judges who will uphold Roe, and rarely appoint judges who come out clearly against it.

    Summing up up as plainly as you did makes hash of what Zachary Roth said.

    But it also underlines a dispiriting truth: once in office, Supreme Court judges generally support Roe no matter who appointed them. With Democrats there will be no exceptions, and with Republicans the exceptions will be so rare that Roe will never be overturned.

    Pro-life voters keep chasing the end of Roe like a carrot, and fleeing the whip of Democrat-appointed judges. But no matter how much time and money they spend sending Republicans to the White House, they will never get that carrot. That’s how it seems to add up.

    David Blue (d0ac59)

  8. Of the 12 Justices cited, four were appointed before Roe, and one just after. Of the last six Justices appointed by Republicans, one (Souter) was clearly a mistake, three are known anti-Roe, and two are very probably anti-Roe but playing it safe so far.

    In other words, Republicans are getting smarter about SCotUS appointments.

    It isn’t absurd to say that the next Republican President would appoint anti-Roe Justices.

    Rich Rostrom (09ec82)


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