By: Hugh Hewitt – washingtonpost.com – November 14, 2021
National Review remains conservatism’s “must read” magazine. It has worked its way back from its “Against Trump” editorial of Jan. 22, 2016 — and the special issue devoted to the same — to its new special issue “End Roe.” The magazine has done so while calmly adopting the appropriate point-of-view about the former president: Praise his accomplishments, criticize his errors and excesses — while robustly tending to the enduring weight-bearing walls of constitutionalism.
One of those walls is a federal judiciary confined to its proper role, which is most definitely not that of reviewing state statutes having to do with the regulation of abortion. The high court has been doing it steadily since Roe v. Wade was handed down in 1973, but with its consideration next month of Dobbs v. Jackson Women’s Health Organization, the pattern is likely ending.
“Out, out damn spot” is the perfect summary of the thinking of serious conservatives toward Roe, as well as Planned Parenthood v. Casey, the 1992 case that narrowed Roe. I am an optimist; come late June 2022, at least six members of the Supreme Court will overturn these cases. The Dobbs case is due for oral argument on Dec. 1 before the high court. Roe’s Waterloo is, finally, at hand.
Most states that permit abortion now — such as New York and California — will see their laws untouched by the jettisoning of Roe and Casey. The subject of “reproductive rights” will return to the control of a self-governing people exercising their views through elected representatives at the state level. If the left wishes to constitutionalize abortion law again, it will have to do it the old-fashioned way: with an amendment to the Constitution.
But what about stare decisis, ask my friends in both punditry and the legal academy. What about precedent, indeed? I’d no more be locked into bad constitutional law on Roe or Caseythan I would be on Dred Scott v. Sandford, Plessy v. Ferguson or Korematsu v. United States — the notorious trio of worst Supreme Court decisions. I put Roe and Casey in that awful pantheon of terrible scars on the court’s history.
Hopefully, the court majority will as well come 2022. It’s not as though all the justices don’t already know their own minds. Uphold Mississippi’s law limiting abortions after 15 weeks — the central question in the Dobbs case — and then stand down until some state makes an absolutist move to oblige pregnant women to risk their physical lives to carry a baby to term.
Whenever the court rules, I think the chief justice will be in the majority. Many conservatives wrongly believe John G. Roberts Jr. to be some sort of replacement for the Sandra Day O’Connor, David Souter or Anthony M. Kennedy triumvirate that drafted Casey — judicial “moderates” who were nominated as conservatives, but who were mostly untethered to originalism. This fear about the chief justice is rooted in the Obamacare decision, in which Roberts sided with four liberals to uphold the law as constitutional based on the government’s power to tax. That remains a moment of judicial restraint of the sort conservatives should applaud: When a statute can be, it ought to be upheld. This deference to elected officials earned Roberts a lot of criticism from the right. Absurd and blind to the chief’s vast body of work, the critiques bounce off him but do not help the court’s reputation.
Roe and Casey should be discarded because they are bad decisions that perverted the Constitution and took us all into the deep polarization we find ourselves in now. When our courts decree, our politics decay. Americans have reorganized themselves into two warring camps, with the right keen to win back the court and thus the debate. The two cases produced a jagged break from the norm that can be healed with steady courage from the six conservative votes on the bench.
Left-wing observers think this will be the ruin of the GOP when it comes to pass. In reality, it will not hurt the party and will instead be the triumph of peaceful politics over raw power. It will remind everyone that states matter, that legislatures matter, that citizens matter.
You will read much about Dobbs in the next few months, as the remaining tall towers of elite opinion — the watch fires of the overclass — are being pre-lit ahead of the oral argument. But the writing is on the wall. The anti-Roe constitutionalists have been right that Roe has been doomed for the last 48 years — nearly as long as the 58 years it took Plessy to be tossed out by the Warren Court in Brown v. Board of Education.
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