We Need A <em>Roe</em> Litmus Test If GOP Judges Keep Scrapping The Constitution

We Need A Roe Litmus Test If GOP Judges Keep Scrapping The Constitution

After nearly 50 years of pro-life efforts, all we've gotten is a series of judges who continue to strengthen Roe v. Wade and its progeny.
Gunnar Gundersen
By

Sen. Josh Hawley, R-Mo., recently voiced the frustration of many pro-life Americans when he said he would no longer confirm a Supreme Court nominee who was not on the record opposing Roe v. Wade.

This was in response to the court’s decision in June Medical Services, LLC v. Russo, in which Chief Justice John Roberts cast the deciding vote to find unconstitutional a Louisiana law requiring abortionists to have hospital-admitting privileges. This was despite the fact that Roberts had voted just four years earlier that such legislation was constitutional in Whole Woman’s Health v. Hellerstedt.

More disturbing than Roberts’s bizarre invocation of stare decisis to support a case that is only four years old and that he thought was wrongly decided on a 5-3 vote was his use of Planned Parenthood v. Casey in reaching his judgment. Throughout his concurrence, Roberts acknowledges the correct standard to apply in the case is Casey, which saved the so-called right to abortion contrived in Roe v. Wade.

Republican Nominees Keep Failing to Overturn Roe

Not only did the chief justice use the Casey framework, but so did Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch in their dissents. Only Justice Clarence Thomas unequivocally said, “Because we can reconcile neither Roe nor its progeny with the text of our Constitution, those decisions should be overruled.”

After nearly 50 years of pro-life efforts, many are asking what we are getting for broadly supporting Republicans rather than prioritizing judicial appointments to overturn Roe, and more specifically Casey, which moved Roe‘s goalposts and established the “undue burden” standard for so-called women’s rights. The answer is a series of judges that continue to strengthen Roe and its progeny.

To say a crisis is brewing in pro-life circles is to put it mildly. The evidence is now irrefutable that these landmark pro-abortion cases are not going to be overturned using the current strategy. Since 1973, Republicans have had 10 appointments to the Supreme Court while Democrats have had four. The answer clearly isn’t simply to have Republicans appoint more judges.

We Just Need More Time

Part of my family is from Venezuela. When Hugo Chavez first came to power, he promised great benefits would flow to the poor people of Venezuela. These people were rightfully feeling desperate. After decades of economic growth, too many were left out of the oil wealth, and this injustice cried out for remedy.

Of course, the Marxist solution Chavez offered was worse than the disease. Every year, the people became poorer, not richer. A perverse incentive began setting in: As poverty increased, the people became more desperate and afraid of losing the promised government benefits that never materialized.

How did Chavez and his successors survive so long despite their obvious lies? Simple: they kept begging for more time for it to work. You see, it wasn’t the fault of policymakers and communism; it was the people’s lack of patience combined with dark and mysterious forces of opposition that thwarted the glorious people’s revolution.

Like the socialists, the conservative legal movement developed a plan: originalism. The idea was to appoint judges with a “fixed” understanding of the Constitution that allegedly precluded any notion of abortion, among other things. Adhering to this form of deciding cases was supposed to satisfy pro-life activists by overturning Roe, while satisfying the more morally indifferent in the Republican coalition from having to make a commitment to doing justice through law.

Where has it gotten us? From the pro-life perspective, not very far. As the walls apparently close in on a new presidential cycle, a desperate pro-life movement is being asked to believe what is needed is more time. At what point do we realize that despite some political victories, the architects of our current Supreme Court strategy are the judicial Chavistas, continually telling us filet mignon and high-quality health care are just around the corner as we settle into a life of dumpster-diving and substandard Cuban medical clinics?

Abortion Views Reveal Constitutional Philosophy

It goes without saying, human nature being what it is, that a so-called litmus test on Roe and Casey is not a guarantee. After a justice has secured a lifetime appointment, there is not much citizens can do if he or she breaks bad.

At the very least, however, we could bet on the internal human desire for consistency and integrity. Importantly, those appointing and confirming justices would show this is not an issue to which they are paying lip service. Rather it would be a priority in the selection process — something it obviously is not now.

Nor is the idea of examining a nominee’s constitutional understanding of abortion unheard of. When Democrats wanted to get their nominee on the record, they made sure to do so with Justice Ruth Bader Ginsburg. Apparently, Democrats have no problem going where Republicans fear to tread.

Other advantages would flow from this approach. For example, it would ensure judicial prospects don’t hide their legal opinions, instead revealing their knowledge and understanding of precedent, something Federalist No. 78 describes as a key requirement for a judge. It also would put the Senate, rather than unaccountable nongovernmental organizations, back in the driver’s seat for advising the president on what counts as “qualified.”

Finally, requiring examples of how a nominee approaches the Constitution is more insightful than requiring “originalist” thinking, since originalism comes in almost as many flavors as there are political philosophies. Indeed, the current promise of appointing “originalists” is as meaningless as promising to appoint a lawyer in good standing.

Nominations Need a Focus Shift

Requiring nominees to be “on the record” will reward lawyers who have shown the courage to advance conservative jurisprudence, diminishing the emphasis on school affiliation and increasing geographic and other forms of diversity on the Supreme Court.

The current focus on the “least objectionable” candidate tends to prioritize pedigree over solid reasoning. This is of growing concern as it becomes clear that those schools that have typically been considered the best are also the most ideologically homogenous and farthest left. The fate of our national jurisprudence should not belong to U.S. News and World Report nor the Ivy League alumni network.

I fear the real reason the abortion question is being avoided is that Republicans do not agree on what it means to reverse Casey and what remains of Roe. In my experience, younger folks tend to think it means recognizing the biological fact that a fetus is a human being. For older Republicans, it just means returning the abortion issue to the states and leaving human rights to a majority vote.

The older set, with the most influence in picking justices, might not want their nominee to reveal that even if we could “reverse” Roe and Casey, most abortions will continue unabated in the majority-Democrat states, where most of them happen.

Gunnar Gundersen is an Affiliated Scholar and member of the Fellowship Faculty at the James Wilson Institute on Natural Rights and the American Founding. He is also a partner at Gundersen & Gundersen LLP, where he represents clients on intellectual property matters, including before the U.S. Supreme Court.

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