The Great Pretender

I've said before that abortion corrupts everything it touches. That's not an original thought.

We know that the practice has hogtied the Democratic Party, which wants desperately to see itself as a champion of the "little guy," despite looking the other way whenever someone makes even a bad argument for "terminating" the littlest guys (and girls).

We also know that abortion corrupts scientific research. For example, given that the Susan G. Komen Breast Cancer Foundation supports Planned Parenthood to the tune of nearly half a million dollars, do you think its advisory board wants to hear about potential links between abortion and breast cancer?

Abortion's corruption of the judiciary would be old news, had the Roberts hearings not given us a fresh look at its effects. Judiciary Committee grandees tried everything they could to divine what, if anything, Chief Justice nominee John Roberts would do to Roe v. Wade. Most of the senators on that committee seem confused about the distinction between the judicial and legislative branches of government, as Cassandra noted in a typically lucid post for Villainous Company.

Comes now James Taranto, in yesterday's Best of the Web Today column. He's one of those who thinks abortion should be "safe, legal, and rare," but he's also spent a lot of time thinking about the demographic implications of what he calls "the Roe effect," and he can't get no satisfaction, either:

Let's assume that Roberts is undecided about whether to overturn Roe but thinks it was wrongly decided back in 1973...How does Roberts decide whether to bow to precedent and uphold Roe or correct an error and strike it down?

The short answer is "only Roberts himself knows."

Yet the current crop of Supreme Court justices faced this question in 1992, Taranto observes, and back then five of them decided that Roe v. Wade was what Senator Arlen Specter would later describe, infelicitously, as a "super duper precedent" (can't you just see the secret decoder ring, the trading cards, and the club membership I.D. that distinguishes between "super duper" and "normal" legal precedents?)

The Supreme Court majority described its 1992 rationale this way:

Where, in the performance of its judicial duties, the [Supreme] Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe . . ., its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

In other words, when the Supreme Court feels especially high-minded, its moral seriousness lends an extra-dimensional oomph to what might otherwise be pedestrian legal writing.

Taranto took approving note of the scorn that Justice Antonin Scalia heaped on his colleagues' description of Roe v. Wade. Scalia recognized that the majority opinion in 1992's Planned Parenthood v. Casey wasn't that far from Germaine Greer's sarcastic remark that "if men could get pregnant, abortion would be a sacrament."

In fact, the threshold was markedly lower than feminists like Greer imagined, though most of them were too bitter to celebrate their "victory." No inversion of biology or theology is necessary when judges genuflect at the altar of even rotten precedent. And in Roe v. Wade, the stench of the ruling -- from a purely legal and empirical standpoint -- is beyond dispute. The Supremes admitted as much 19 years later, in Scalia's dissent from Planned Parenthood v. Casey:

"Although Roe v. Wade is not directly implicated by the Pennsylvania statute, which simply regulates, and does not prohibit, abortion, a reexamination of the "fundamental right" Roe accorded to a woman's decision to abort a fetus, with the concomitant requirement that any state regulation of abortion survive "strict scrutiny," is warranted by the confusing and uncertain state of this Court's post-Roe decisional law," wrote Scalia for himself and three other justices, including the late Chief Justice Rehnquist.

Once past the confessional preamble (from which I deleted parenthetical case citations), Scalia and the Dissenters cut loose with an opinion both high octane and sensibly contrarian, starting with a little something we traditionalists like to call "cause and effect:"

The Court's description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve.

Translation: Bad law federalized is still bad law.

What Taranto doesn't say while wondering if there's any way to revisit Roe without recourse to politics is that Scalia had more than historical grounds to attack the smug extra-dimensional reasoning of the majority in Planned Parenthood v. Casey. Their 1992 opinion justified itself on the ground that the judgment in Roe v. Wade derived from a "common mandate rooted in the Constitution."

Were such a mandate actually in the Constitutional zoo, that justification might make sense, but instead it's a classic example of begging the question: what "originalist" judges and people like me have long maintained is that abortion is not rooted in the Constitution.

Had abortion been a legitimate right, Justice Blackmun wouldn't have had to resort to evoking "penumbras" and "emanations" whose previously-undiscovered presence he apparently deduced from the way they bend the light around the Fourteenth Amendment.

That Blackmun forgot to lump "auras" with penumbras and emanations suggests that his clerks misplaced Mr. Justice Thesaurus on that crisp January day when the band "America" was enjoying acclaim as a Grammy award winner for "Best New Artist."

The late Justice Rehnquist faulted Justice Blackmun and the Roe majority for riding into a verdict on a horse with no name:

"To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment."

Ann Coulter, who unlike Mr. Justice Rehnquist, is still with us, concurs:

There is really no such thing as a judicial activist on the right since the whole point of being a strict constructionist is that you don't hallucinate when reading the Constitution...Notwithstanding the claims of addled feminists, for example, when Roe vs. Wade is finally overturned, abortion won't be illegal. All that will happen is the court will abandon the preposterous fiction that the Constitution says anything at all about abortion. Abortion just won't be a constitutional right anymore, and you people can do what you like in your own states.

You wouldn't know that from reading press releases crafted by Planned Parenthood, or mainstream reviews of "brave" abortion-themed movies like The Cider House Rules and Citizen Ruth.

Another oft-remarked consequence of Roe v. Wade is that, having overstepped its bounds to applause from the left in that case, the Supreme Court has since been loathe to let its newfound muscle go unused. As a result, it now accepts cases that John Marshall would have laughed off the bench. Not coincidentally, Italian-American associate justices of a more sarcastic temperament find themselves in what the military calls a "target-rich" environment.

Here's Scalia again, writing this time in PGA v. Martin (2001):

It has been rendered the solemn duty of the Supreme Court of the United States…to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a "fundamental" aspect of golf.

It's no wonder that moral conservatives and honest progressives alike reject the majority reasoning in Roe the way Alfonso Bedoya rejected Humphrey Bogart in The Treasure of the Sierra Madre:

"Penumbras? Emanations? We don't have to show you no stinking penumbras and emanations!"