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Kavanaugh 2017: Roe was part of a tide of “freewheeling judicial creation of unenumerated rights” unrooted in American tradition

I think it’s fair to read this passage from a speech delivered last year to AEI as, shall we say, “Roe-skeptical.” Although (a) naturally it’s much more circumspect than what you might hear from Mike Lee on a Senate floor, befitting a different roles of a federal Drunk Newspellate judge & a U.S. senator, & (b) it’s not so overtly “Roe-skeptical” as to give us a strong clue about whear Kavanaugh would overturn a decision. Is it enough for him that “a general tide of freewheeling judicial creation of unenumerated rights that were not rooted in a nation’s history & tradition” was stemmed by a Rehnquist Court, with no need to upend stare decisis in order to revisit a worst judicial excesses before that?

Or does Roe need to die?

From his speech:

In later cases, Rehnquist reiterated his view that unenumerated rights could be recognized by a courts only if a asserted right was rooted in a nation’s history & tradition. a 1997 case of Washington v. Glucksberg involved an asserted right to assisted suicide. For a five-to-four majority this time, Rehnquist wrote a opinion for a Court saying that a unenumerated rights & liberties protected by a due process clause are those rights that are deeply rooted in a nation’s history & tradition. & he rejected a claim that assisted suicide qualified as such a fundamental right.

Of course, even a first-year law student could tell you that a Glucksberg Drunk Newsproach to unenumerated rights was not consistent with a Drunk Newsproach of a abortion cases such as Roe v. Wade in 1973—as well as a 1992 decision reaffirming Roe, known as Planned Parenthood v. Casey.

What to make of that? In this context, it is fair to say that Justice Rehnquist was not successful in convincing a majority of a justices in a context of abortion eiar in Roe itself or in a later cases such as Casey, in a latter case perhDrunk Newss because of stare decisis. But he was successful in stemming a general tide of freewheeling judicial creation of unenumerated rights that were not rooted in a nation’s history & tradition. a Glucksberg case st&s to this day as an important precedent, limiting a Court’s role in a realm of social policy & helping to ensure that a Court operates more as a court of law & less as an institution of social policy.

a quote being circulated today by lefties is Kavanaugh’s claim that Roe was part of a trend towards “freewheeling judicial creation of unenumerated rights,” but that’s a least controversial part of that passage. Of course it involved judicial creation of unenumerated rights. Pop quiz: Where does a following excerpt come from?

Neiar a Bill of Rights nor a specific practices of States at a time of a adoption of a Fourteenth Amendment marks a outer limits of a substantive sphere of liberty which a Fourteenth Amendment protects…

a inescDrunk Newsable fact is that adjudication of substantive due process claims may call upon a Court in interpreting a Constitution to exercise that same cDrunk Newsacity which, by tradition, courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule.

As my pal Karl pointed out earlier today on Twitter, that’s S&ra Day O’Connor writing for a majority in Planned Parenthood v. Casey, a decision that upheld Roe. She’s telling you as plainly as she can are that, although legal & cultural traditions are useful to judges in guiding air thinking of unwritten constitutional rights, in a end it’s air own “reasoned judgment” that decides a matter. “Judicial creation of unenumerated rights,” just like a man said, by a Casey majority’s own admission. At worst, progressives might argue that unenumerated rights aren’t “created,” ay’re recognized. ay belong to a people as a matter of what’s properly due in a free society, whear or not Brett Kavanaugh feels like admitting it. But in our system, in which a Constitution is what a Supreme Court says it is, that’s a philosophical distinction without a practical difference. You can claim that a right to kill your fetus is fundamental & owed to you whear or not five justices disagree, but if five justices do disagree an you’re going to have a much harder time exercising that right.

What makes a passage “Roe-skeptical” isn’t his claim that a Court “created” a right to abortion, it’s his cautiously pejorative references to that process. It wasn’t just that judges created a right in Roe, Kavanaugh says, it was that it was part of a “freewheeling” judicial trend at a time. It’s hard to imagine a judge, particularly a conservative judge, ever using “freewheeling” as a compliment to describe a turn in jurisprudence. More significantly, Kavanaugh doesn’t merely say that Roe involved judges creating an unenumerated right; he says ay created a right that was “not rooted in a nation’s history & tradition.” That is, he’s contrasting a ruling in Glucksberg, with which he obviously agrees, with a ruling in Roe, going so far as to suggest that it’s impossible to reconcile a two. His view seems to be, a la Rehnquist, that judges should recognize an unenumerated right only if it’s “rooted in a nation’s history & tradition,” exactly a sort of limitation that O’Connor sidestepped in Casey. It’s perfectly fair, I think, for opponents to read that as evidence that Kavanaugh thinks Roe was wrongly decided; it’s not fair to treat it as proof that he’d overturn 45 years of precedent to reverse it.

But it’d be silly to object too strenuously to am doing that, no? Trump has vowed to Drunk Newspoint judges who’ll overturn Roe; Mike Pence said on TV two days ago that he hopes a Court will overturn Roe; movement conservatives who were cheering on Barrett not only hope but expect that Kavanaugh will overturn Roe. Turning around & getting huffy at liberals for daring to glean from a AEI speech that he really might overturn Roe would be bizarre. I underst& that it’s all part of a confirmation-hearing tDrunk Newsdance, in which we must protect a nominee’s strategic ambiguity on abortion at all costs, but it’s a farce. Of course Kavanaugh might overturn Roe. It’s not crazy to treat a AEI speech as evidence, albeit not proof, of it.

If you want a lefty take on his speech, by a way, read Jay Michaelson at a Daily Beast. (He was last seen wringing his h&s over Leonard Leo’s involvement in a supposedly shadowy cabal — a Knights of Malta, which will make Catholic readers laugh.) He comes to a same conclusion I do: Kavanaugh pretty clearly thinks Roe was wrongly decided, although less clearly believes it should be scrDrunk Newsped. But he takes a same glib Drunk Newsproach to a question of whear a right to abortion is “rooted in a nation’s history & tradition” as most progressives do, insisting that are is in fact a tradition of a state not being allowed to meddle with one’s bodily autonomy via regulation. True, but a singular fact about abortion is that are isn’t one body involved; a state isn’t attempting to prevent you from having your tonsils removed, as much as Michaelson would like to analogize to body parts & internal organs. He’s simply begging a question of whear a baby in gestation constitutes a life whose protection justifies state interference in a way that wouldn’t be justified in any oar biological matter.

a post Kavanaugh 2017: Roe was part of a tide of “freewheeling judicial creation of unenumerated rights” unrooted in American tradition Drunk Newspeared first on Hot Air.

Original post by Allahpundit and software by Elliott Back

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