New at Reason

Julian Sanchez | July 22, 2005

The more people attack Supreme Court nominee John Roberts, the better Jacob Sullum likes him.

Comments

|7.22.05 @ 1:34PM|#

If Sullum likes Roberts because of some of the attacks on him by the Left (mostly by elements that would attack *any* Bush choice) shouldn't he be worried about *praise* Roberts has receieved from Jeff Rosen, Cass Sunstein, Lawrence Tribe, etc? As some of them point out, Roberts' dissent in Rancho Viejo was much narrower than Sentelle's and explicitly left room for some other theory that the Endangered Species Act could be constitutionally applied to that case.

And remember that Roberts himself has specifically stated that the positions he took as deputy Solictor General were simply the positions of his "client", the US government (GHW Bush administration) and did not necessarily represent his own opinions.

|7.22.05 @ 3:28PM|#

Can someone who knows about con-law point me in the direction of material explaining what the reasoning behind Roe v. Wade was and why its not very strong? I've heard this argument on this website over the last week, and being in the science field, have never studied the decision closely. Thanks.

|7.22.05 @ 3:39PM|#

Can someone who knows about con-law point me in the direction of material explaining what the reasoning behind Roe v. Wade was and why its not very strong?

Can we also find out what the national body politic will do without this particular political distraction? Or, why should I not be bored by and be concerned about the stupid issue anyway?

|7.22.05 @ 4:28PM|#

deron: lose a huge source of fundraising. Without abortion to rally the pro-life wackos as well as the "leave my body alone!" wackos, what would there be to drum up the base? Gun control? Free trade? Abortion works precisely because it's the number one emotion-wrenching issue on both sides.

|7.22.05 @ 4:40PM|#

Can someone who knows about con-law point me in the direction of material explaining what the reasoning behind Roe v. Wade was and why its not very strong?

Basically, the reasoning is weak because, in order to overturn the abortion laws, the Court had to find that these laws violated some Constitutional provision. A plain English reading of the Constitution reveals no such provisions, really, so the Court cobbled together a "right to privacy" that it said was implied by other rights in the Constitution.

However, the chain of implication was so weak that Justice Blackburn, who wrote the opinion, characterized this right to privacy as being found, not in any provision of the Constitution, but rather as an "emanation of a penumbra" of the Constitution.

Personally, that's language I would use disparagingly, but hey, it was the strongest he could come up with.

|7.22.05 @ 4:41PM|#

"leave my body alone!"

You do not have the right to do whatever you want with your body. You don't have the right to use drugs not yet approved by the FDA, even if it is the only chance to save your life and will be approved in due time.

|7.22.05 @ 4:48PM|#

Abortion is the most fundamental right any woman has . Without it, women have no rights, it is worse to lose the abortion right than to lose all other rights. It is what being a woman is all about.

|7.22.05 @ 4:52PM|#

I'd love to know who the parody artist(s) is/are. That is some great stuff, which is why I call parody, not trolling.

Iguana|7.22.05 @ 5:11PM|#

Jane & Sally, with all due respect, get real.

Nah, I gotta stop reading this stuff and get back to work.

nmg|7.22.05 @ 5:15PM|#

Although the constitution doesn't explicitly call for a right to abortion, that doesn't mean we don't have that right.

The constitution *does* contain the 9th amendment which can reasonably be interpreted as containing a general right to privacy, and thus it would be up to the court to determine if abortion is part of an accepted right to privacy under the 9th.

Of the course the whole point of the 9th is to protect all manner of rights that aren't explicitly outlined in the provisions of the constitution, and to pre-empt any argument otherwise. "Where in the constitution does it say you have the right to X" is a facile, and specious argument.

And in order for the 9th to even matter, Justices must be able to rule on which unnamed rights it covers and strike down legislation that violates those rights.

Seems pretty straightforward and in fact it seems like the kind of ruling that libertarians should love.

nmg

|7.22.05 @ 5:20PM|#

"Abortion is the most fundamental right any woman has . Without it, women have no rights, it is worse to lose the abortion right than to lose all other rights. It is what being a woman is all about."

Sally, I respectfully yet vehemently disagree. (Was that sarcasm and I'm missing it?)

This is equivalent to saying that women are defined wholly by their reproductive abilities/choices/etc.
No thanks, I'd rather lose my 'right to an abortion' than my right to vote.

|7.22.05 @ 5:47PM|#

linguist,

I think you missed the joke.

Egg on me if she(?) wasn't joking, but I honestly don't think there's anyone who would really make that argument.

|7.22.05 @ 5:54PM|#

Linguist interesting that you choose the right to vote to compare to the right to an abortion. Nearly anybody who wanted an abortion (ie had an immediate need of one) and had to choose between that and the right to vote would rationally choose the abortion, as it has a greater effect upon their lives, and confering direct tangible benefits. In fact a large fraction of the population already does not vote so would be loosing almost nothing. No real point.

I do find it interesting that Jacob chooses to esentially criticize the left for making substantive arguments about why they do not like Roberts. By definition a substantive argument is one which your opponents will agree is true, but which they will view differently (this case being an extreme example, where Jacob finds the listed traits endearing). At least the criticisms are relevant and accurate. Would you prefer a repeat of the nanny gate stuff.

Generally I have been surprised at how reasonable the attacks have been despite pronouncements on these boards and elsewhere that the democrats would be completely unreasonable/completely self destruct over the nomination. A fair number of issue groups have come out against roberts mostly because they suspect, quite reasonably, that his appointment will harm their issues. Generally the overall tone, particularly from senate democrats has been measured and fair. The largest overreaction so far has ironically been from people who have decried the democrats for attacking any judicial nominee regardless of qualifications before said democrats acutually attacked. Perhaps in the end things will work out differently, but right now it looks like several people need to reevaluate their knee jerk reaction that anyone who does not agree with them is unreasonable.

|7.22.05 @ 6:43PM|#

R.C. Dean,

A "right to privacy" of one variety has been recognized by the Federal Courts since post-bellum period (specifically since the 1890s).

The penumbra language comes from Griswold and its not really an argument that Blackmun makes except to merely cite what Griswold says; nor does Roe having any quote remotely like the one that you claim that it does.

Of course there is also the fact that Roe isn't the primary case at issue; Casey is the case at issue.

|7.22.05 @ 6:45PM|#

I would suggest that Jacob Sullum compare Roberts' career with that of other high-powered D.C. attorneys, namely folks like Ted Olson. Unlike Olson, Roberts has been happy to work for both Democrats and Republicans.

|7.22.05 @ 8:09PM|#

Abortion is the most fundamental right any woman has . It is what being a woman is all about.

I read something like that in a book "Our Bodies Ourselves" in womyn's studies.

|7.22.05 @ 10:27PM|#

"right to privacy" of one variety has been recognized by the Federal Courts since post-bellum period (specifically since the 1890s).

Along with other endearing things from the 1800s that lasted into the 1900's like seperate but equal. The mere fact one finds precendent doesn't mean a "right to privacy" exists anywhere in the Constitution. And even if I assume the right does exist, I'm unsure how privacy and abortion would equate from there (I am aware of privacy being used for other issues such as marriage, although in 1890 they were discussing right to privacy against the press - and Griswold was birth control IE body control).

And lastly, even if I take a right to privacy exists, and it equates directly to abortion, that certainly doesn't allow the court to define trimesters and in which ones abortions can be limited, and depending upon which one, by how much.

Is that because in the first trimester it's really private because most people can't notice it, but the second one only semi-private, and of course by the thrid trimester they "fail to realize their fetal girth"?.

|7.22.05 @ 10:46PM|#

SixSigma,

It specifically exists within the Fourth Amendment.

The Court's rationale in Casey is pretty clear.

Matt|7.23.05 @ 4:26AM|#

The problem with "privacy" is that the word can mean so many different things...especially in the context of rights theory. There are enumerated rights in the 1st, 3rd, 4th (obviously), and 5th amendments which could easily be grouped under the heading of "privacy"...but none of them say anything at all about abortion. Yet somehow, we've discovered a "right to privacy" so malleable that it includes abortion (an issue seemingly having nothing fundamental to do with privacy, except for the necessarily privacy-infringing aspects of any attempt to enforce prohibition) but doesn't include anything about _privacy_.

A reasonable argument in favor of nationally legalized abortion could be made on 9th amendment grounds, I think...as a federalist argument for regulation on a state-by-state basis could be made on 10th amendment grounds. But of course, neither side of the political or cultural civil war wants to acknowledge _those_ nasty, icky, power-limiting amendments. Much safer to make the word "privacy" meaningless.