Catching Up on the Weekend’s (and Monday’s) News
Part One of Two

With Congress coming back in session today, the already-intense speculation over who will be retiring Justice Sandra Day O’Connor's replacement can only grow day by day. There have been several developments worth pondering.

Evidently, a few more reporters have figured out that O’Connor is one of six, not five, justices who support Roe v. Wade as viewed through the prism of the Planned Parenthood v. Casey decision. That is progress.

In that 1992 decision six justices upheld Roe albeit for different reasons. Some, such as Justice Harry Blackmun, grumbled that the “undue burden” standard O’Connor articulated provided a less firm “right” to abortion than Roe’s “right to privacy” rationale. In fact, the idiom is so vague, so notoriously imprecise, it could—and was—used to overturn a ban on the hideous partial-birth abortion technique.

The biggest surprise in Casey was Justice Anthony Kennedy, thought by many to be about to pitch Roe overboard. Not so: Kennedy sided with O’Connor in upholding her “undue burden” standard for determining a law’s constitutionality.

True, Justice Anthony Kennedy wrote a blistering dissent in the 2000 Carhart decision. However, that was in response to the majority’s decision to overturn Nebraska’s ban on partial-birth abortion--not the basic “right” to abortion which Kennedy unambiguously supported. If Roe/Casey is to be consigned to the dustbin of history where it belongs, there must be two more justices on the Court who find that reasoning unacceptable.

If you kept track, you also know that the tributes just keep rolling in for O’Connor. The ever-helpful pro-abortion Senate Judiciary Committee Chairman Arlen Specter suggested on a talk show yesterday that the President ought to ask O’Connor to un-retire–-to be available to take over as Chief Justice if, as is widely speculated, Chief Justice William Rehnquist steps down. Fortunately, that is a non-starter on about ten different levels.

By contrast, other more astute observers continued to point out the incoherence that is the trademark of so many of O’Connor’s decisions. From several excellent choices, let me offer some observations from syndicated columnist Charles Krauthammer.

Citing chapter and verse, Krauthammer convincingly argues that O’Connor was an “ad hoc pragmatist.” But this “turns the Supreme Court not only into a super-legislature, but into a continuously sitting one.”

O’Connor idea of jurisprudence, Krauthammer explains, “was to decide whether legislation produced social ‘systems’ that either worked or did not." But this "is the job of the elected branches of government,” he writes.

"Legislatures negotiate social arrangements. Judges are supposed to look at their handiwork and decide one thing and one thing only: Whether the ‘system' the politicians produced comports with the Constitution. On what other grounds do judges have the authority to throw out legislation? Do they have superior wisdom about what works, superior capacity to decide which social boundaries require negotiation and which do not?”

For completely different reasons, at least one pro-abortionist has counseled against enshrining O’Connor as the model jurist. Edward Lazarus clerked for Justice Blackmun.

Over the years he’s offered astute criticism of the legal underpinnings of Roe. Not to rid of us of the plague of abortion on demand, you understand, but to establish it on more solid footing.

He more or less concedes, in a back handed sort of way, that "liberals" can be justly accused of "simply enshrin[ing] their moral choices in the Constitution under the guise of interpretation. In common parlance, this is called legislating from the bench."

The difficulties start "when unelected, life-tenured judges use their power of judicial review to overturn the enactments of elected representatives, there has to be some greater justification than a judge's own sense of modern morality or wise policy." He goes on,

"This is where the difficulties with O'Connor's jurisprudence arise, as does the danger for liberals who now champion its virtues. In one field of law after another, she has imposed on the court highly idiosyncratic and personalized tests for what the Constitution requires. Take the issue of abortion. In O'Connor's controlling view, states are free to regulate abortion as long as they do not impose an 'undue burden' on a woman's right to choose. What is an 'undue burden?' On this closely divided court, it boiled down to O'Connor's personal judgment."

It is precisely this kind of justice that President Bush is determined not to nominate. And it is precisely why pro-abortionists, such as Senator Charles Schumer, would love an O'Connor look-alike. Such a justice would give them the chance to prop up a decision that has long since lost any intellectual justification.

In Part Two, I'd like to take just a few minutes to talk about judicial extremism. It’s an amazing tale.

See you tomorrow.

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