As regular readers of TN&V know, we had a few technical glitches late last week. Editions did not go out on schedule. I trust, even reading them late, you find them of use.

And I also hope everyone had a wonderful Easter. With all my kids home from college, it was a particularly wonderful weekend for me.

Veteran pro-lifers know that "precedent" is the last refuge of pro-abortionists. Now that everything else has failed--it's obvious that Roe v. Wade and its legal progeny make no sense as constitutional law (or anything else)--proponents fall back on the notion that courts ought to dutifully honor the status quo. Or, to put it in a more high-falutin' way, courts must have a decent respect for prior decisions (precedent) or chaos will reign.

Obviously, at one level, this has a lot of appeal. But at another, it doesn't hold a drop of water. If the Supreme Court blindly followed precedent, African-Americans would still be assigned to segregated schools, to name just the most obvious example.

Robert Nagel is a professor at the University of Colorado. On Monday he offered a very thoughtful opinion piece at nationalreview.com: "Bowing to Precedent --A decent respect for the Constitution should cause the Supreme Court to reconsider some past decisions."

Let me note just a couple of highlights as the essay applies to abortion. (Professor Nagel also writes about other issues beyond our purview.) These will touch on ideas that I, for one, never considered.

First, pro-lifers and others have bitterly complained (with complete justification) that the Supreme Court has long dabbled in matters in which it has no particular expertise and certainly no constitutional warrant. But Nagel takes this insight further.

"Respect for precedent means not only that the justices should follow the specific outcomes of prior cases but also that they must follow their logic. The logic of legions of cases demands that judges second-guess legislative and executive decisions on the most sensitive moral and political issues and that judges decide for themselves on the appropriate means for achieving preferred policies.

"The simple fact is that constitutional law as set out in the cases now requires judges to legislate from the bench. Nominees to the Court can repeat endlessly that judges should interpret, not make, law. But unless they are willing, once on the Court, to rethink the logic of prior cases, they will have to make law."

A brilliant insight, don't you think? If the logic of past decisions virtually mandates judicial second guessing, then that logic must be revisited if the courts are ever to get out of the habit of legislating from the bench.

Second, the Court used Planned Parenthood v. Casey to update/revise/revisit Roe v. Wade. Some parts are simply gobbledygook, other sections are almost mystic in their impenetrability, while still others are fiercely defensive of what these justices knew were Roe's colossal weaknesses.

Nagel does many things well in his essay, but two in particular. He explains (in English) how the rationales used in Casey to justify maintaining Roe's "essential holdings" are not statements of "legal principle at all" but the "moral conclusion" of several of the justices. And when the justices speculate on what reversal of Roe would mean, this is amateur social science, not a disinterested reading of whether Roe remains good law.

Second, in several places Nagel addresses what the Court really seemed to be saying in Casey, once you get past the self-congratulatory prose. You may remember in Casey how three of the justices (O'Connor, Souter, and Kennedy) went on and on about how the Court couldn't be seen as giving into "political pressure." The illogic has been pointed out ten thousand times: the more controversy a decision evokes, the more it should remain beyond re-examination.

The following quote from Prof. Nagel builds on that. It is lengthy, but much worth reading.

"More disturbingly, Casey does not exactly say that following the precedent set by Roe is important in order to convince the public that the Court is in fact abiding by legal principle. It says, to be precise, that it is important that the Court appear to be abiding by legal principle. Indeed, for all its high-toned references to the rule of law, the opinion is suffused with cynicism about the relationship between law and politics.

"At one point, for instance, it asserts that, because the usual reasons for overruling precedent do not apply to the original abortion decision, 'the Court could not pretend to be reexamining the prior law with any justification beyond present doctrinal disposition to come out differently from the Court of 1973.' Pretend? And since when is a considered judgment that a constitutional ruling was profoundly wrong as a matter of law referred to as 'a present doctrinal disposition to come out differently'"?

It can not be said often enough. Roe v. Wade (and its sister decision Doe v. Bolton) wreaked havoc with the abortion laws of all 50 states. The Court's ongoing effort to shore up the unsupportable may work in the short term but Roe's eventual collapse is inevitable.

Please send your comments to Dave Andrusko at dandrusko@nrlc.org.