Justice Samuel Alito’s Brilliant Rejection Of ‘Raw Judicial Power" George Rasley, CHQ Editor Updated: 11 hours ago
It is vanishingly rare in human history that, once a political leader obtains power that leader
chooses to voluntarily surrender it, and even rarer for a leader to assert that even though he or she sits in a position of authority he lacks the power to grant the wishes of a substantial constituency.
But that is exactly what Justice Samuel Alito did in his brilliantly written opinion in the case of Dobbs v. Jackson Women's Health Organization, which overturned the Roe and Casey decisions creating a “right” to an abortion:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Justice Alito’s opinion was it its purest form a rejection of the liberal conceit that judges have untrammeled power to act as a super legislature, do whatever they want, and impose those views on the rest of the country.
chooses to voluntarily surrender it, and even rarer for a leader to assert that even though he or she sits in a position of authority he lacks the power to grant the wishes of a substantial constituency.
But that is exactly what Justice Samuel Alito did in his brilliantly written opinion in the case of Dobbs v. Jackson Women's Health Organization, which overturned the Roe and Casey decisions creating a “right” to an abortion:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).
The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Justice Alito’s opinion was it its purest form a rejection of the liberal conceit that judges have untrammeled power to act as a super legislature, do whatever they want, and impose those views on the rest of the country.
No comments:
Post a Comment