As Yogi Berra once put it, it’s déjà vu all over again. The pro-life movement knows what he meant.
In 1992, the Supreme Court looked to have the votes to overturn Roe v. Wade, the landmark 1973 ruling that unearthed a constitutional right to abortion somehow never mentioned in the Constitution. But Justice Anthony Kennedy went south and joined two other justices in writing a plurality opinion that threw out most everything in Roe—except for its conclusion.
Now pro-lifers feel betrayed again, this time by Chief Justice John Roberts. In June Medical Services v. Russo, he cast the deciding vote rejecting a modest Louisiana law requiring abortionists to have admitting privileges at nearby hospitals. The arguments were based less on abortion than on dubious interpretations of principles such as stare decisis and third-party standing.
As Justice Neil Gorsuch wrote in dissent, it wasn’t Roe that was in question in June Medical. It was the court’s own integrity—its “willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.”
The court’s disrespect for those constraints once again has pro-lifers crying foul. This time, however, the chief justice’s defection to the liberal camp is leading some to question the whole conservative project of working to appoint jurists who will follow the Constitution and the law.
Some seem simply to want Republican-appointed judges to do for conservative causes what Democratic-appointed judges do for liberal ones: Deliver the preferred outcome and cook up whatever justification is needed to get there.
These critics have a legitimate point, which cuts to the heart of a self-governing society. If pro-lifers are going to do the hard work of democracy—electing politicians and passing legislation—only for the Supreme Court to throw it out on some pretext, what alternative does that leave them?
Dissenting in Casey, Justice Antonin Scalia predicted as much. His argument was about how corrupting it has been, for democracy as well as the law, for justices to substitute their own opinions for those of the American people acting through their elected representatives. “By banishing the issue from the political forum,” it deprives the losers of “the satisfaction of a fair hearing and an honest fight.” Something for the chief justice to consider next time he ponders threats to the “legitimacy” of the Roberts court.
Sen. Josh Hawley (R., Mo.), a former clerk to Chief Justice Roberts, hasn’t been specific about the new vetting process he calls for. Some appear to favor one requiring nominees to be explicit about the results they would deliver. Scalia weighed in on this too:
“How upsetting it is that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.”
Justices, he argued, were inviting political pressure: “If, indeed, the ‘liberties’ protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours.” Confirmation hearings “should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated.”
Some of those embittered by Chief Justice Roberts now seem to be taking Scalia’s advice. But Scalia was issuing a warning, not an endorsement.
So where does this leave pro-lifers? As disappointing as Chief Justice Roberts has been, it’s ridiculous to conclude that his defections from the constitutional principles advanced by the Federalist Society and Leonard Leo, one of President Trump’s key advisers on judicial nominations, discredit either these principles or the people working hard to advance them. It’s also a bracing reminder that no one can predict how someone with a lifetime appointment will rule.
On the practical side, it’s worth noting that without the support from pro-choice Sen. Susan Collins (R., Maine), Justice Brett Kavanaugh would probably not be on the Supreme Court. Does anyone think that forcing, say, Amy Coney Barrett to declare herself on Roe or abortion would make it more likely for her to be confirmed?
If pro-lifers trust the American people, as we say we do, we don’t need pro-life judges to prevail. What we need is judges who will do what John Roberts promised in his confirmation hearing: call balls and strikes. That ideal hasn’t changed, even if the chief justice has failed to live up to it.
Write to mcgurn@wsj.com.
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