David Savage, the Boy Who Cried Wolf, today tells us that there really is a wolf out there. And this time (he says), he’s not lying!
Savage has a front-page Sunday-edition article titled This time, Roe vs. Wade really could hang in the balance. This time, definitely! The deck headline reads:
The Supreme Court’s onetime wide majority in favor of abortion rights has shrunk to one: Justice John Paul Stevens, who is 88. Now the decision’s fate may depend on who becomes the next president.
And the lead paragraphs:
WASHINGTON — Every four years, defenders of abortion rights proclaim that the fate of Roe vs. Wade hangs on the outcome of the presidential election.
This year, they may be right.
Through most of the 1990s and until recently, the Supreme Court had a solid 6-3 majority in favor of upholding the right of a woman to choose abortion. But the margin has shrunk to one, now that Justice Sandra Day O’Connor is retired and has been replaced by Justice Samuel A. Alito Jr.
Nonsense. David Savage doesn’t know that. Yet he insists on giving prominence to the sky-is-falling concerns of the NARAL crowd:
“Clearly, Roe is on the line this time,” said Indiana University law professor Dawn Johnsen, a former lawyer for NARAL Pro-Choice America. “It is quite clear they have four votes against it. If the next president appoints one more, the odds are it will be overruled.”
It is not “quite clear” at all. Indeed, there is good reason to believe that there is still a 6-3 majority in favor of upholding Roe, based on the actual language of recent opinions.
As I have previously written, we have no way of knowing whether Justices Alito and Roberts would vote to overturn Roe:
There are, as we speak, two clear votes for overturning Roe. And Roberts and Alito aren’t either of them.
In the most recent major abortion decision, Gonzales v. Carhart, Justice Thomas wrote a concurrence that stated his opposition to Roe:
I write separately to reiterate my view that the Courts abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution.
He was joined by only one Justice: Antonin Scalia. To the disappointment of Roe opponents, Justices Alito and Roberts pointedly refused to sign on to that concurrence.
Nowhere in Savage’s article does he tell readers that Justices Alito and Roberts had a chance to sign on to an opinion rejecting Roe, and refused to do so. The closest Savage comes to making this point is in this paragraph, which is the 26th paragraph of a 32-paragraph article:
If Stevens or Ginsburg were to be replaced by a staunch conservative, that would tip the majority against abortion rights. However, it is not certain that Roberts and Alito would join Scalia and Thomas in pressing to overrule the right entirely.
Why are readers not told until the 26th paragraph that Alito and Roberts may not vote to overturn Roe? Why are readers never told that Alito and Roberts had a chance to sign an opinion overturning Roe and refused? Why are readers told that a majority that may well be 6-3 has “shrunk to one”?
And is it just a coincidence that the alarmist view of the Court espoused by Savage benefits the Obama campaign?
I don’t know, but I know that Savage has shown a pattern of crying wolf in reporting on this issue. Before “Justice Sam Alito” was even a gleam in President George W. Bush’s eye, Savage was busy implying that John Roberts could be the fifth vote against Roe, by calling Justice O’Connor (whom Roberts was then set to replace) the “swing vote on . . . abortion.” (See also this 2005 post.) In January 2006, once Justice Roberts was on the Court, it was Justice Alito’s turn to become the bogeyman, as Savage misleadingly implied that Alito would be a fifth vote to overturn Roe.
Since then, Savage has been screeching in article after article that McCain could provide the Court with the fifth vote to overturn Roe — just like Savage previously suggested would happen with the appointment of Roberts, and then again with the appointment of Alito.
And just look at how simple this will be for McCain! All McCain has to do is a) win the election, b) nominate a justice conservative enough to vote to overturn Roe, something that has happened twice in the last 36 years, c) get that justice confirmed by a Senate controlled by Democrats, who may have a filibuster-proof majority, and d) get Justices Alito and Roberts to sign on to an opinion disapproving Roe, which they have so far refused to do.
Piece of cake! No wonder David Savage is so worried.
Because this time, the wolf is really out there!!!