Roe and Refs. This is an intermission on my notes on the
Roe v. Wade case (sorry, it's been one of those weeks). I was just talking with a friend -- a Giants fan -- about the Super Bowl and we each agreed that the worst scenario -- even worse than losing a blowout -- is losing by a bad call by a referee.
Roe v. Wade was a bad call. Not just because it made abortion -- in my view the killing of babies -- legally permitted. Yes that was bad, but the problem is that there is no reason for the Court to have ruled the way it did. What it did was a lot like if the referee waved off a winning touchdown by saying there was a rule that said you couldn't throw a pass to anyone wearing a jersey number with double digits with less than two minutes left in a game.
Don't take my word for it -- look at this
story by law professor Kermit Roosevelt or
this one by the strongly pro-abortion reporter Tony Mauro.
Roosevelt writes:
For years now, there has been a serious disconnection between the popular perception of Roe and its standing among constitutional law scholars. It is now time to address that disconnect; it is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.
This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.
Mauro quotes Jeffrey Rosen and descibes him thusly,
liberal George Washington University Law School professor and legal affairs editor at The New Republic, likens the ruling to "the mad grandfather in the attic that no one wants to look at. It's a lingering embarrassment." He adds, "The remarkable thing about Roe is that 30 years later, scholars are still trying to find a good rationale for it."
Of course, the gulf between making a mistake on the field and one in the Court is huge -- wider than the gulf between galaxies. If you make a mistake on the field, you can admit it like the NFL did and it aggravates a large number of fans for years. If you make a mistake as a Justice, people die, you destablize the law, the government and society; you politicize the courts for decades; you destroy legitimacy. Oh, and people die -- 40,000,000 in the past 30 years. Who was it, Noonan or Dreher, who wrote in the past week that it's the same as killing off everyone in New York City and California.
Since I've been doing this blog, I've
mentioned the
Shapiro Conjecture, by USA Today columnist, which, if you haven't read, you really should. This is the best brief explanation of how Roe has distorted the political process in the past 30 years.
This was a profoundly bad decision.
BTW -- since I mentioned the refs and the Super Bowl --
here is a list of the refs and
here is an article about the head referee, Mike Carollo.