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July 20, 2005
Leahy Logic
Leahy, interviewed on CNN after meeting with Roberts, said, "We have right now the most activist Supreme Court I've seen in my lifetime. ... So I'm going to ask him are you going to be part of that same activist coalition, overturning settled law, rewriting the law yourself? And, among those, of course, is going to be Roe v. Wade," the 1973 ruling that established a woman's right to an abortion.Prior to Roe v. Wade, there was no established “right” to abortion. With that single ruling by life-tenured, unelected judges, settled law was overturned. That Court in effect rewrote the law themselves. His own logic would compel him to conclude that the Roe Court was activist.
Posted by Rick at July 20, 2005 07:37 PM
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» Mario Cuomo, through the looking glass from The Unalienable Right
Mario Cuomo writes today in USA Today:
Most political analysts believe that President Bush, by nominating Judge John Roberts, seeks to put on the Supreme Court a justice who will help achieve significant changes in laws through judicial decisions tha... [Read More]
Tracked on July 21, 2005 02:25 PM
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Not exactly. Roe, although exstablishing a new "right," was actually a fairly incremental step, well anticipated by the line of privacy-rights cases (Griswold et al.) preceeding it. I think these were all bad decisions, but they were at least marginal, incrimental steps.
Overturning Roe at this point would be a dramatic break with precedent. It has been the clear law for 30 years and has been twice explicitly reaffirmed by the Court (once on no other basis other than that it was so well settled -- see Casey v. PP). It would not be a small, imcremental, or logically compelled step at all -- it would be a radical departure from settled law.
I'm not saying Roe shouldn't be overturned -- it unquestionably should. But it would take an "activist" court -- willing to shake up established laws and legal theory -- to overturn it. It would be akin to Brown v. Board's dramatic reversal of Plessy (school segregation - separate but equal).
Posted by: ELQ at July 21, 2005 08:36 AM
ELQ, Roe wouldn't be overturned overnight. First step would be to uphold the partial birth abortion ban. Next step would be to uphold parental notification laws and a host of other restrictions. Another step would be to strip abortion "rights" back to those specified under Roe, which are far more restrictive than the abortion on demand that we have now. There would be other steps as well, but certainly permitting states to regulate abortion mills and the conditions under which abortions are legal would be the start.
In public, Leahy fears punctuated activism, which of course is not going to happen. In private, he fears what I and others pray will happen - gradual reversal of 50 years of bad case law. That is, reversal of 50 years of activism from the bench. So, Roe certainly was the result of an activist Court. Not a single body of 9 members, but an activist court indeed.
Posted by: Rick at July 21, 2005 11:05 AM
>>Prior to Roe v. Wade, there was no established “right” to abortion.
So. I'm sure that prior to other court rulings there were no established rights to lots of other things too.
>>With that single ruling by life-tenured, unelected judges, settled law was overturned.
It wasn't settled totally. With that single ruling by life long experts in the law who are free to make rulings without being influenced, it became settled.
I would agree that settled law was being overturned in the case where a court overturns *itself* and says something is now legal that it had previously said was illegal or vice versa.
Posted by: Bill Ataras at July 22, 2005 08:19 PM