I imagine that readers of this blog will have differing opinions of New York Times conservative columnist Bret Stephens. But it is hard to argue with the fact that he is a consistent conservative. Here is a taste of his column, “Overturning Roe is a Radical, Not Conservative, Choice“:
Dear Chief Justice Roberts and Justices Barrett, Gorsuch, Kavanaugh and Thomas:
As you’ll no doubt agree, Roe v. Wade was an ill-judged decision when it was handed down on Jan. 22, 1973.
It stood on the legal principle of a right to privacy found, at the time, mainly in the penumbras of the Constitution. It arrogated to the least democratic branch of government the power to settle a question that would have been better decided by Congress or state legislatures. It set off a culture war that polarized the country, radicalized its edges and made compromise more difficult. It helped turn confirmation hearings for the Supreme Court into the unholy death matches they are now. It diminished the standing of the court by turning it into an ever-more political branch of government.
But a half-century is a long time. America is a different place, with most of its population born after Roe was decided. And a decision to overturn Roe — which the court seems poised to do, according to the leak of a draft of a majority opinion from Justice Samuel Alito — would do more to replicate Roe’s damage than to reverse it.
It would be a radical, not conservative, choice.
What is conservative? It is, above all, the conviction that abrupt and profound changes to established laws and common expectations are utterly destructive to respect for the law and the institutions established to uphold it — especially when those changes are instigated from above, with neither democratic consent nor broad consensus.
This is partly a matter of stare decisis, but not just that. As conservatives, you are philosophically bound to give considerable weight to judicial precedents, particularly when they have been ratified and refined — as Roe was by the 1992 Planned Parenthood v. Casey decision — over a long period. The fact that Casey somewhat altered the original scheme of Roe, a point Justice Alito makes much of in his draft opinion, doesn’t change the fact that the court broadly upheld the right to an abortion. “Casey is precedent on precedent,” as Justice Kavanaugh aptly put it in his confirmation hearing.
It’s also a matter of originalism. “To avoid an arbitrary discretion in the courts,” Alexander Hamilton wrote in Federalist No. 78, “it is indispensable that they” — the judges — “should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” Hamilton understood then what many of today’s originalists ignore, which is that the core purpose of the courts isn’t to engage in (unavoidably selective) textual exegetics to arrive at preferred conclusions. It’s to avoid an arbitrary discretion — to resist the temptation to seek to reshape the entire moral landscape of a vast society based on the preferences of two or three people at a single moment.
Read the rest here.
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